A. IMAMBANDI AND OTHERS V. HAJI MUTSADDI AND OTHERS
(Father is considered to be the sole and supreme guardian of his minor child.)
Bench: Lord Shaw, Justice Sir John Edge, Justice Ameer Ali, Justice Walter Phillimore, Justice Bart, and Justice Lawrence Jenkins
Respondent: Sheikh Haji Mutsaddi
Citation: Privy council Appeal No.73 of 1914
● According to Muslim law how far a mother's dealings with her minor children's property were binding on the minors?
Facts of the Case
● There was a property at issue before the Bombay high court which was claimed by three widows of a Muslim man who died intestate.
● The petitioner claimed that she was the mother of the child and hence, the legal guardian and thus, was entitled to the share of the property belonging to the child.
● The case deals with the concept of guardianship and division of property which is based on guardianship.
● A declaration of the title and status of the appellants' vendors.
● A decree in favor of the appellants for the possession of shares covered by the deed of sale.
● The respondents denied, as they had done in the Revenue Courts, that Zohra was one of Ismail Ali Khan's married wives and that her children were his legitimate issue, and they further contended that shares that the plaintiffs claimed to recover did not pass under the sale.
● The revenue courts had rejected the appellant's plea.
It was held by the council that the mother had no power to alienate the property for she wasn't the legal guardian. Ameer Ali, in delivering the judgment of the Board laid down that the mother in Muslim law is merely entitled to the custody of a minor and isn't the natural guardian. The father is the sole and supreme legal guardian.
● Paragraph 6: The Lordship opinionated on the grounds of Mohammedan law “a person who has charge of the person or property of a minor without being his legal guardian, and who may, therefore, be conveniently called a "de facto guardian,'' has no authority to convey any other right or interest on the immovable property which the transferee can enforce against the infant, nor can such transferee, if he is let into possession of the property, refuse an action in ejectment on behalf of the minor child as a trespasser.
● As observed that in the absence of the father under Sunni law the custody vests in his executor. If the father dies without appointing an executor or if the father is alive, the custody of his minor child devolves on their grandfather. Also, should he be dead, or have left an executor, it vests in him. In De-jure guardians, judges as representative sovereign devolve the duty of appointing the guardianship to protect and preserve the infant’s property. No person has the right or power to intrude with the minor’s property except for some specified purpose, nature which is clearly defined.
B. MUHAMMAD MUIN-UD-DIN AND ANR. VS MUSAMMAT JAMAL FATIMA
(The Allahabad High Court in this case held that a prenuptial agreement between a wife and her husband was valid and enforceable in the court of law.)
Court: Allahabad High Court
Bench: Justices Lindsay, K Lal
Parties: Appellant - Muhammad Muin-Ud-Din
Respondent - Musammat Jamal Fatima
● Whether a pre-nuptial agreement made between a woman and her potential husband and her father-in-law, providing for the payment of a certain maintenance in the event of future disagreements between her and her prospective husband, is moral and good in law and enforceable after her divorce or is opposed to public policy and void?
Facts of the case
● It was discovered that Mehdi Hasan, the husband, had married twice before and on each occasion he seems to have ill-treated his wife.
● The father of the plaintiff was, therefore, naturally anxious that something must be done in order to defend his daughter from similar ill-treatment and to secure for her a maintenance in case his daughter and Mehdi Hasan could not live happily together in their marriage.
● The pre-nuptial agreement in question offered that in case of disagreement or disunion the prospective husband and his father should be obliged to pay an allowance of Rs. 15 per month in addition to the dower-debt to the wife for her life and certain property was speculated to secure the disbursement of that payment.
● It should be noted that the plaintiff was divorced by her husband on the 14th of August 1917 and a ceremonial deed of divorce was completed and registered a few months later.
● But long before that date, differences had apparently swabbed up between them. The plaintiff had gone back to her father’s house in 1912 and a notice was sent by the husband to the father of the plaintiff on the 30th of October 1912, phrased in impudent terms and demanding that the plaintiff should be sent back to his house with her jewelry.
● There was other evidence as well to show that there had been conflicts between the plaintiff and her husband from about that time. On that evidence the Court awarded to the plaintiff the allowance mentioned in the agreement from the 30th of October 1912.
● The learned Counsel for the appellants contends while referring to the decision that was held in the case of Bai Fatma v. Ali Mahomed Aiyab1, that the agreement in question was held unenforceable; and that was a case in which an individual, who had a wife alive and wanted to marry another woman, had entered into an agreement with his first wife that he would pay her a certain payment as maintenance, if any alterations took place between her and her husband thereafter.
● The counsel prayed that a similar decision must be taken in this case and the contract should not stand as it cannot be enforceable.
● The Appellant further argued that such agreement in that case was treated as opposed to public policy, because it supported a separation between the husband and his wife and even engaged it.
● The appellant also claimed that agreements of this nature can be held against the husband and the wife can take advantage of such documents.
● The respondent argued that the agreement in the present case was executed before the marriage in order to restrain the prospective husband from ill-treating his wife or behaving inappropriately towards her or capriciously turning her.
● The dower-debt payable to the plaintiff was unquestionably a solid security against an unpredictable divorce, but that was clearly not enough to protect her from ill treatment.
● The Counsel also claimed that the agreement in question was obtained to secure the wife against ill treatment and to ensure for her a suitable amount of maintenance in case such ill treatment was faced by her.
● The counsel for the respondent also argued that such an agreement is not opposed to public policy and did not encourage divorce in the slightest way possible.
The Allahabad High Court held that the said agreement between the woman and her potential husband was not opposed to public policy in any way and granted the wife a decree for the account claimed by her.
1. The question for contemplation before the High Court in this case was whether a prenuptial agreement formed between a woman and her potential husband and her father-in-law, providing for the compensation of a certain maintenance in the event of future disagreements between her and her prospective husband, is fair in law and enforceable after her divorce or is it oppose public policy and is void. The Court found that the agreement was not opposed to public policy and awarded the plaintiff an order for the account claimed by her. It appears that Mehdi Hasan, the husband, had married two times before and on each occasion he seems to have treated his wife badly. The father of the plaintiff was, therefore, instinctively concerned that something should be done in order to protect his daughter from similar ill-treatment from the husband and to ensure for her a maintenance allowance in case his daughter and Mehdi Hasan could not live happily together.
2. In view of the circumstances and facts established in this case, we do not consider that the pre-nuptial agreement in the present case violated the provisions of Section 23 of the Indian Contract Act or encouraged or simplified a separation between the plaintiff and her husband in any way, shape, or form. The marital rights obviously ended with the divorce; but the contract subsists till the plaintiff dies or breaks it, and so long as the right to maintenance lasts, it cannot be regarded as lacking consideration or opposed to public policy in any way. The discovery of the Court that the disagreements existed from the 30th of October 1912 is conclusive and cannot be disturbed in a second appeal. The appeal, therefore, fails and is dismissed with costs including in this Court fees on the higher scale.
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