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When the accusation of adultery is made by the husband with a view to defending the lawsuit and never voluntarily or in aggression; then it can’t be a purpose for the dissolution of the wedding in accordance with the Mohammedan regulation

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When the accusation of adultery is made by the husband with a view to defending the lawsuit and not voluntarily or in aggression; then it cannot be a reason for the dissolution of the marriage according to the Mohammedan law written by Avdhesh Parashar, a student of the Maharashtra National Law University Aurangabad

Nurjahan Bibi Vs. Md. Kajim Ali AIR 1977 Cal. 90.

FACTS:

Nurjahan Bibi and Md. Kajim Ali were married to each other under Mahommedan law. In 1964, Nurjahan filed a motion to dissolve the marriage. The husband / defendant submitted his written statement stating that the plaintiff was of bad character and that she was in love with an Asgar Ali and that she had committed adultery with him. The plaintiff contested such a claim by the defendant. As a result of these allegations, the Court / Munsif found that the plaintiff was entitled to dissolve her marriage to the defendant, stating that the wife should always be dedicated to her husband, and if the husband makes such an accusation without evidence, she is entitled to dissolve their marriage under Li’an law. This decision was appealed to the Additional District Judge, who found that the statement made in the defendant’s previous lawsuit did not constitute a charge of adultery that would result in the dissolution of the marriage. The additional district judge granted the appeal and overturned the Munsif Order. The matter is brought to this Hon’ble Court through a second appeal by Appellant Nurjahan Bibi against the order / judgment of the additional District Judge Murshidabad, which was in favor of the defendant.

PROBLEM:

Whether the defendant’s allegation against his wife (applicant) in his written statement should be viewed as a voluntary or aggressive or independent declaration of adultery against his wife?

EVALUATION:

Under Mahommedan law (Li’an Law), if the husband brings false charges of adultery against the wife, the wife is entitled to a divorce. This false accusation of adultery by the husband must be a voluntary and aggressive or independent declaration of adultery against the wife. If the allegation or charge is in self-defense or designed to refute or counteract some of the allegations made by the assailed woman, the husband’s allegation of adultery cannot be said to be voluntary or punishable in order to obtain a divorce judgment . If a wife in her written statement brings an action for dissolution of marriage against the husband for some reason, the plaintiff’s adultery with another person is brought up for defense, so the plaintiff cannot be believed and he may not receive a decree on divorce , Such allegation cannot constitute a voluntary or aggressive or independent declaration of adultery against the woman. The husband is forced to defend himself and make such accusations for his own protection. Such an assertion is certainly not a voluntary one which could give rise to an action by the woman for dissolution of marriage. The law allows the accused-husband to stand up against the plaintiff’s case for any appropriate reason to defend himself. If the law allows the accused to include a pertinent self-defense plea against the plea, that objection cannot be used as a weapon against him; if he is prevented from making such an allegation in the written statement, he will go against public order and consequently proper justice and judgment cannot be made in any civil action. If such an allegation by the defendant in the written statement may be used by the plaintiff as a ground for future disputes to dissolve the marriage, then the right of the law to make a relevant allegation will certainly be denied due to the uncertainty of making the decision in the lawsuit. If this position is permissible for the defendant, it means that the defendant is being denied legitimate rights. When the accused-husband’s testimony of the wife’s adultery in the lawsuit is relevant and necessary to counter the wife’s attack in the lawsuit; it cannot be termed a voluntary charge of adultery against the woman and cannot be a reason for the dissolution of the marriage in a subsequent lawsuit by her. Therefore, the Hon’ble Court finds no error in the contested order and the appeal is hereby dismissed.

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