Law: Dissolution of Muslim Marriages Act, 1939

Section: 2(viii)(d)

Law: Civil Procedure Code (V of 1908)

Section: 100

(a) Dissolution of Muslim Marriages Act WIN of 1939), S. 2 (viii) (d)-Disposal by husband of wife's property does not necessarily mean misappropriation by him of such property­--Form of issue to be struck on point. Issue on ground of disposal by husband of wife's property should not be so framed as to make it appear that it was necessary for the defendant to commit an act of misappropriation before the provisions of the Act could reach him. Section 2 (viii) (d) provides that the wife would be entitled to have her marriage dissolved "if the husband treats her with cruelty, that is to say, disposes of her property or prevents her from exercising her legal rights over it". The issue should be whether the husband had disposed of his wife's property or prevented her from exercising legal rights over it rather than has he misappropriated plaintiff's property. (b) Civil Procedure Code (V of 1908), S. 100-Second appeal-Question of fact to be conclusive must have been independently arrived at by Court of first appeal after discussion of evidence. Where the Court of first appeal had said "the defendant has led evidence to show that this sale was effected with the consent of the plaintiff and in agreement with the learned Sub-Judge I am also of the opinion that the plaintiff did give her consent". Held, that such a finding of the District judge could not operate as conclusive in second appeal. The evidence led ought to have been discussed and an independent mind brought to bear on the issue. Even if the Court of appeal professes to have examined the evidence a mere statement that upon an examination of the evidence it agrees with the conclusions of the trial Judge would not convince the Court of second appeal that the evidence has been so appraised as to make it unnecessary for that Court to undertake a second appraisal. It is only when the Court of second appeal is thus convinced that it will regard the finding of fact by the District judge as conclusive. Further that a finding based on oversight or mis-statement of the evidence, cannot be regarded as conclusive. (c) Dissolution of Muslim Marriages Act (IIII of 1939), S.2 (viii) (d)-Disposal means, just disposal and no…

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