1. This suit is brought by a Mahomedan wife for declarationthat she is divorced and for prompt and deferred dower. There is now noquestion as to the justness of the demand for the prompt dower. As to thedeferred dower the question rests on certain terms in a kabinnamah between thetwo parties. The condition which is laid down by the terms to which we havereferred is that the husband is to live with the wife in her fathers house andthat if he breaks this condition she is to have a right to divorce him. That ofcourse implies that the Wife will continue to live in her fathers house. Thefirst Court held that the contract was not illegal, but the condition we havereferred to was not fulfilled. He accordingly gave a decree only for the promptdower. Against this the wife appealed to the lower Appellate Court. Inconsidering the question the Judge refused to consider whether the condition towhich we have referred was or was not illegal on the ground that the Respondenthad not entered any cross-appeal on the subject.

2. We are now asked to say that this decision of his waswrong and that the contract was in fact an illegal one. The findings of fact bythe lower Appellate Court are sufficient for us to proceed to the determinationof the case on the validity of the contract. We have no doubt that theDefendant had a right to ask for a decision on this point in the lowerAppellate Court, since it was a point on which he could have upheld thedecision of the Court below. Therefore the Judge was wrong in not consideringit.

3. There is some good authority for the statement that thecondition that the wife shall be at liberty to live with her parent is void. Wemay for this refer to Wilsons Digest of Anglo Mahomedan Law, sec. 56, AbdurRahims Institutes of Mussalman Law, Article No. 7, para. 3 and to the decisionin the case of Abdul Piroj Khan v. Husseinbi 6 Bom. L.R. 728 (1904). We holdtherefore that this condition is illegal and that the Plaintiff is accordinglynot entitled to use it for supporting her claim to divorce and consequently tothe deferred dower. Accordingly we allow this Appeal and though we differ fromthe Munsif in the reasons given for his decision we affirm his decree. TheAppellant is entitled to his costs in this Court and in the lower AppellateCourt.

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Imam Ali Patwari vs.Arfatunness (09.07.1913 - CALHC)