Family Law : Problems & Solutions - 6

1) A Mohammedan, agrees to live in his father-in-law's house and to pay his wife Rs. 700/- if he does not do so and deserts his wife. It is also stipulated that if he fails to pay Rs.700/- according to this agreement the wife shall have the right to seek dissolution of the marriage. The wife accordingly files a suit for dissolution of marriage. Decided.

Solution -.
                    Under the Mohammedan law an ante-nuptial agreement by which the husband agrees to live with his father-in-law is not valid. The husband's house. Such an agreement, however, is valid by custom in Kashmir. The institution of Khana Damad in Kashmir provides for the residence of the husband with his wife in her parents house and is valid.

  The further question is whether the stipulation for dissolution of marriage in the contingency of default by the husband is enforceable. It was held in MD. Khan's case, that such a stipulation is not opposed to public policy and is enforceable. The suit for dissolution of marriage brought by the wife was accordingly decreed. Such a divorce may be regarded as Talaq by delegation. Muslim law allows the husband to delegate to the wife the power to divorce in stipulated contingencies. In this case that is the situation and consequently the suit for divorce in maintainable.

2) A, a Mohammedan woman, lived with her husband for a month and then went to her parents. After two years she died for dissolution of marriage on ground that she was not maintained by the husband for two years.

Solution -
                   These are the facts of A. Yousuf v. Sowramma, the husband's plea is that since his wife had wrongfully left him he was not bound to maintain her. When there is a good cause to refuse maintenance can the wife avail herself of the statutory ground for divorce? Krishna Iyer, j., held that the petitioner (wife) was entitled to divorce under the Act since she had not been maintained for two years and it was not material to consider whether there was any legal justification for failing to maintain the wife.



3) A Mohammedan marries A minor girl who has not yet attained puberty. He sue to recover custody of the minor from her mother

Solution -
                   On marriage, it is the husband that becomes the guardian of the minor wife, but under Mohammedan law the husband has no right to the custody of the wife till she has attained puberty. So under the Guardian and wards Act, 1890 the court would regard the husband as unfit to be appointed as guardian of the person of the child wife. When the husband is regarded as unfit, any other qualified person having regard to the personal law applicable to the minor, may be appointed by the court as such guardian. So it is the mother that will be appointed as guardian of the minor girl and not the husband till the girl attains puberty.