1. The judgment of the High Court (Prinsep and Beverley,JJ.) after stating the facts as above, proceeded as follows:

It becomes necessary, therefore, in dealing with this appeal,to determine the exact effect of a muta marriage under the Shiah law, andwhether it can be dissolved in the manner stated by the plaintiff, and found byboth the Courts. The word muta signifies "enjoyment," and as appliedto a particular form of marriage indicates a marriage of a temporary character,"the extent of the period being left entirely to the parties who mayprolong or shorten it to a year, a month, or a day; only some limit must bedistinctly specified, so as to guard the period from any extension ordiminution." (Baillies Digest of Mahomedan Law, Part II, on the ImamiaCode, page 42). In the Tagore Law Lectures, 1874, by Shama Charan Sircar, onthe same subject, at page 373, Section 517, the law is expressed in the sameterms, the Tahrir-ul-Ahkam being quoted as an authority.

2. There is apparently no limit to the number of wivesmarried in this form. The Mahomedan law limits the number of permanentlymarried wives to four, but it is stated on the authority of the Imam JaferSadik that the number of muta, wives is not restricted to the usual number offour or even to seventy (see Baillie, 345). The eight rules of the contract ofa temporary marriage are set out in Baillie, pages 42-44, and by Shama Charanat pages 379-381 to the same effect. From these, as well as from the fact that"there is no maintenance for a wife married in the muta form nor is ahabitation to be assigned to her"--Tahir-ul-Ahham (Shama Charan, page377),--it is clear that the result of a muta marriage is to place the person ofthe wife, without any restriction in any sense of the term, at the disposal ofthe husband for the term agreed upon, the sole consideration being the dowerstipulated between the parties. Her children are entitled to inherit, butunless there is some special contract with this object, the husband and thewife [284] cannot inherit inter se. No doubt Rule 6 declares that, under thisform of marriage, the ordinary divorce cannot be effected, inasmuch as themarriage is dissolved on the expiration of the period agreed upon; but it isnot difficult to ascertain the reason for this. Unless there be some specialagreement for the protection of the wife, she is no burden on the husband; sheis under an obligation to be at his will and pleasure, and he is not in returnbound to contribute to her maintenance or even to provide her with a place ofhabitation, and if a reference be made to the circumstances under which thisform of marriage was created by Mahomet himself, it was intended to legalizesexual intercourse for any time agreed on by the parties concerned. It wasprobably for this reason thought unnecessary to extend to it even the easy formof divorce prescribed for dissolution of a permanent marriage. A dissolution ofa muta marriage by efflux of time is, however, subject to this limitation. Itis stated on the authority of the Tahir-ul-Ahkam (see Shama Charan, page 380,note) that, although "there is no divorce in the muta or temporarymarriage, still separation (bain) would take place upon the term being givenaway to the wife, or upon the ex piration thereof." So also, theSharaya-ul-Islam declares that, "if the husband were to make the woman agift of the term before coition, he would be liable for half the dower, and ifcoition should have taken place, she is entitled to the whole dower oncondition of her keeping the term, and if she has prevented him, he is entitledto deduct a proportionate part of the dower." Mr. Baillies translation ofthis passage, page 41, is not altogether accurate, and has been in somerespects corrected ; The passage is also reproduced in Shama Charan, page 381,note. I not her words, so far as we understand the authorities, the conditionsof a muta marriage are these: A dower and a period for cohabitation aremutually agreed upon; the dower being fixed, the woman is at her husbandsdisposal for the term agreed on. If the marriage is not con-summated, the womanis nevertheless entitled to half the dower, as it were by way of damages; butif the marriage is consummated, she is entitled to the full dower, whether theparties continue to cohabit for the stipulated period or not, provided that, ifcohabitation ceases through any fault on the part of the woman, the husband isentitled to make a proportionate deduction from the amount of the dower. Butthe husband, having paid or agreed to pay the dower, is not bound to cohabitwith the wife for the stipulated term or for any longer term than he thinksfit. He may release the woman from her part of the eon tract at any time, thoughhis liability for the dower will remain. On these authorities it has been heldby the lower Courts, and rightly held, that, although the ordinary law ofdivorce does not exist in respect of marriages by the muta form, and they aredissolved ipso facto by the expiry of the term for which they may have beencontracted, still there is another way of terminating the marriage by thegiving away of the un-expired portion of the term for which the marriage wascontracted.

3. It has, however, been found by the District Judge, andthis has been much pressed upon us by Mr. Amir Ali, who appeared for thedefendant-respondent, the lady, that the act of the husband in giving away theunexpired term does not operate as a dissolution of the marriage except withthe consent of the woman. We can find no valid authority for this contention.The Mahomedan law amongst Shias regards a muta wife as under an obligation toher husband to be at all times prepared to place her person at his disposalwhenever required during the period for which the marriage may have beencontracted; and without entering into particulars of a very disgusting nature,it is only necessary to state that even in this respect she is not regarded ashaving an equal status with a permanently married wife. In the matter of theobligation, the Mahomedan law regards persons in that position as debtors, andwe have been referred, in the consideration of the question now before us, tothe law in respect of debts and their cancellation. Baillie (page 203) states :"The donation of a debt, or what rests on, the obligation of another, isnot valid to any other than the debtor or person by whom it is due, accordingto the most approved doctrine, by reason of the condition already mentioned,that it requires possession to complete it, whereas, if made to the debtorhimself, it is quite valid and operates as a release of the debt--a release notrequiring acceptance, according to the most approved opinion." ShamaCharan (page 26) on the authority of the Fatawa dlamgiri, Vol. IV, pp.535, 536,declares that "the gift of a debt to the debtor is a release, and it islawful both by analogy and on a liberal construction of law" ; andfurther, on the authority of the Hedayah and Kifayah, that "the gift of adebt, or release of it to the debtor, is complete without his acceptance,though it is reversed by his rejection." As opposed to this, Mr. Amir Alihas referred us to two passages from the Mabsoot and Jami-ul-Fiquah which seemto require the consent of a debtor to the cancellation of a debt. The Mabsootno doubt is a work of considerable authority, but it is apparently little knownin India, and having regard to this fact, we are not prepared on thiscontradiction to doubt the correctness of the Sharaya-ul-Islam as a binding authorityamongst Shiahs in India, The passages quoted are isolated passages, and withoutreference to the context, which has not been laid before us, we should not bedisposed to act upon them under any circumstances; but having regard. to thefact that they are directly opposed to the authorities invariably acceptedamong Shiahs in India, and the fact that the Mabsoot is so little known andrecognized that only one copy of this work has been obtained, and that withgreat difficulty, for the purposes of this appeal. It is not improb-able thatthe parties to this suit were not cognizant of the existence of the Mabsoot andof the Jami-ul-Figuah, or at all events that they were not aware of thepassages quoted so as to make them operate in regard to any transaction betweenthem in preference to the usually accepted authorities.

4. Mr. Amir Ali further contends that, even if we were tohold that under the Mahomedan law the consent of the woman is unnecessary, weare bound under the rules of justice, equity, and good conscience which we arerequired to administer, to modify the strict law in this respect, and as anauthority for this, he refers us to the remarks of their Lordships of theJudicial Committee of the Privy Council in the case of Moonshee Buzloor Ruheemv. Shumsoonnissa Begum 11 M.I.A. 551 (615).

5. The case before us is one to which the observations oftheir Lordships cannot properly apply. If we were entitled to consider whetherin this or in other customs prevalent in this country the particular law of asection of the community was "in plain conflict with the requirements of amore advanced or civilised society," as now pressed on us by Mr. Amir Ali,we might in many cases find it difficult to recognize customs regarding whichwe are by law required to administer local law (see Act VI of 1871, Section 24)as being consonant with what in a European country, where life is passed underentirely different conditions, is considered to be in accordance with therequirements of our society. The illustration given by their Lordships of thePrivy Council seems to indicate that the exceptional case contemplated was oneof inhumanity, amounting to barbarity, and they did not contemplate theextensions of any of the requirements of more advanced western society.

6. In the case before us we should not therefore bejustified in relaxing the Mahomedan law. The rules of that law are clearlydefined in respect to muta marriages, and if parties, nevertheless, thinkproper to contract themselves or to allow their minor relatives to becontracted by this form of marriage, we think that they are not entitled to anyspecial relief not contemplated by that law to avoid the effect of thedissolution of that marriage by the lawful act of the husband. So far,therefore, we agree with the lower Courts in finding that the marriage wasdissolved by the husband in giving up the unexpired period agreed upon in thecontract of marriage. But we do not agree with the District Judge that theconsent of the woman was necessary to complete the termination of thatmarriage.

7. An objection has been raised on behalf of the defendantrespondent that, inasmuch as the Courts have found against the plaintiff inrespect of the statement made by him regarding the amount of the dower and theperiod for which the muta marriage was contracted, the plaintiffs case shouldbe dismissed. In respect of the amount of the dower, we would observe that itwas not what is known in the Mahomedan law as "prompt," and that,therefore, any dispute, regarding the amount of that dower or the payment of itin the present case, would not affect the question connected with thedissolution of the marriage. It would be open to the woman, after suchdissolution, to recover any amount of the dower, which might remain unpaid fromthe husband in the same manner as any other debt due from him. Next in respectto the term agreed upon and given up. No doubt, both the Courts have found,and, this being a finding of fact, we cannot question it on second appeal, thatthe term of one month and a half stated by the plaintiff was not what wasagreed upon between the parties, and they have not thought it necessary todetermine what that term was. But they have found that "whatever that termmay have been, the unexpired portion of it was given up by the husband. Whetherhe gave this up, as he states in his plaint, within a very short time after themarriage was contracted, has not been found, probably because what subsequentlyoccurred rendered this immaterial. It seems that more than two years after themarriage was contracted, and while the proceedings for maintenance institutedby the wife were pending before the Magistrate, that is to say, long after theexpiry of the period of one month and a half which the plaintiff still contendswas the period agreed upon, the plaintiff as a matter of precaution (so hestates) again in a public and unmistakeable manner gave up to the lady whatevermight be the unexpired period of the marriage. We understand from this, that,without admitting that his own statement of the term agreed upon was incorrect,he intended to give and did actually give to the defendant whatever under anycircumstances might be the period still remaining of the term agreed upon, andthus intimated in an unmistakeable manner to his wife his determination todissolve the marriage, so far as lay in his power, by having recourse to thisform of proceeding. We cannot but regard this as a complete surrender ofwhatever period might still be unexpired, and therefore sufficient to completethe dissolution of the marriage and the discharge of the woman from anyobligation depending thereon. So far, therefore, in the case before us, wethink that the plaintiff is entitled to a declaration that the defendant ceasedto be his muta wife on the 20th of February 1882.

8. We were at one time in doubt whether, having regard tothe decision of the Division Bench in the case of In the matter of LuddunSahiba 8 C. 736 in the exercise of its criminal jurisdiction in respect to theproceedings for maintenance instituted by the defendant, we are not bound torefer this case to a Full Bench in consequence of a different opinionentertained by us. We think, however, that this is unnecessary, inasmuch as welearn from the judgment in that case that "no authority" was shown tothe learned Judges "in support of the contention that the effect of givingup the rest of the period is to put an end to the relationship of husband andwife." It has been already stated that there is authority for thiscontention, and we, therefore, in view of that authority, do not feelembarrassed by the judgment of the other Division Bench of this Court. If thatauthority had been laid before the learned Judges, it is not improbable thatthey would have taken the view that has been already expressed as our opinion.We may refer in support of the view taken by us to the authority of theSharaya-ul-Islam and Tahir-ul-Ahkam as reproduced by Mr. Baillie and BabooShama Charan Sircar in the passages quoted, as well as to the Sharah-i-Looma, awork of undoubted authority which is still more clear on this point. A copy ofthis work has been put in evidence, but although it has been quoted by thelearned Counsel for the appellant, we have not thought it necessary to refer toit except in corroboration of the better known authorities of theSharaya-ul-Islam and Tahir-ul-Ahkam.

9. It is only necessary in passing to observe that theallegation of the defendant in her written statement that there was a specialcontract with the plaintiff in regard to her position and maintenance has notbeen raised before us in the argument addressed by the learned Counsel, and wasapparently abandoned in the lower Courts.

10. Having found that the relationship of husband and wifeno longer exists between the parties, it remains for us to consider the effectof our finding on the proceedings before the Magistrate. The plaintiff asks foran injunction to restrain the Magistrate from enforcing the order formaintenance. We are of opinion that we cannot pass such an order. The plaintiffwill be at liberty to satisfy the Magistrate that, by an order of this Court inits civil jurisdiction, it has been declared that no relationship existsbetween him and the defendant, and he can ask the Magistrate on the authorityof the cases of Abdur Bohoman v. Sakhina 5 C. 558, and Abdul Ali Ismailji v.Husenbi 7 B. 180, to abstain from giving any further effect to his order formaintenance. The decree of the lower Appellate Court will accordingly be setaside, and the plaintiff will receive his costs in this Court and in the lowerCourts.

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Mahomed Abid Ali Kumar Kadar vs. Ludden Sahiba (16.06.1886 -CALHC)