109-NLR-NLR-V-04-CASSIM-v.-BIBI,-et-dl.pdf
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1900.
October 19.
CASSIM v. BIBI, et oX.
D. G., Chtlaw, 2,126.
Mohammedans—Action for damages for adultery of wife—Dismissal of case on
plaintiff's own application, on ground of amicable settlement—Fresh casefor damages for continuance of adultery—Former suit a bar to presentaction.
A Mohammedan husband is entitled to bring an action for damagesagainst another Mohammedan who has committed adultery with hiswife, inasmuch as the ground of action in such cases is the injuryinflicted on the husband’s reputation by the conduct of the adultererand the disgrace and shame to which he is put in the eyes of hisneighbours.
Where plaintiff brought such an action and moved for and obtaineda dismissal of it on the ground that he had settled the matter amicablywith the defendant, and then raised another action because adulteryhad still continued,—
Held, that the dismissal of the former action was a bar to the presentaction, and that no fresh action accrued to the plaintiff.
CTION for the recovery of Rs. 200, being damages said to
have been sustained by the applicant by reason of theadultery of the second respondent with the first respondent, thewife of the applicant.
The issues framed were—
Is the action maintainable for the recovery of damages so
long as the marriage between the plaintiff and the firstdefendant exists?
If there was adultery, does the Mohammedan law allow
damages either as against the defendant or the co-defendant ?
The District Judge dismissed the action as against the firstdefendant, on the ground that there was no claim made againsther, and as against the second defendant he held that an actionfor damages was maintainable, and ordered the case to be set downfor hearing on the facts.
The defendant appealed.
Bawa, for appellant.
No appearance for respondent.
19th October, 1900. Bonseb, C.J.—
This is an action of an unusual character. It is an action by aMohammedan husband against' another Mohammedan, who, healleges, has committed adultery with his wife, and he claims
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damages in respect of the injury thereby inflicted on him. TheDistrict Judge has held that he was entitled to maintain an actionin respect of this injury, although it was strenuously contendedthat, as between Mohammedans, no such action lay. The defend-ant has appealed. Mr. Bawa, who appeared for him, arguedbefore us that, inasmuch as the Mohammedan Code of 1806,which governs the relations between Mohammedan husbands andwives, was silent as to this question, it was not competent to theCourt to apply the rules of the Common Law to this case. Heargued that the relationship between a Mohammedan and hiswife was not a marriage, and that, therefore, no actionable damageresulted to the Mohammedan husband in case of adultry. Herelied upon a decision of this Court in which I took part—Tillekaratne v. Samsadeen (4 N. L. R. 65),—where this courtheld that we ought not to impose on a Mohammedan marriedwoman the disability to deal with her own property which theBoman-Dutch Law imposed on a Christian wife.
It does not seem to me that the present case is at all analogousto that case. The ground of the action in the present case is theinjury inflicted on the husband’s reputation by the conduct of theadulterer, the disgrace and shame to which he is put in the eyesof his neighbours, relations and friends. So far as I can judge ofthe views and feelings of Mohammedans in this matter, a Moham-medan husband resents quite as much as a Christian husbandan insult of this kind. In fact, I imagine that the disgrace wouldbe likely to be felt more acutely by a Mohammedan husband,and I am, therefore, unable to see on what principle the Courtshould deny a man insulted in this way the ordinary right torecover damages for that insult.
But another objection was raised by counsel, which was arguedin the Court below, in which I think there is more substancethan the one to which I have just referred, and that is this:it appears that adulterous relations have been going on since1897. This action was instituted in April, 1900. Some time inAugust, 1897, the plaintiff commenced an action against thedefendant, alleging that in July, 1896, adultery had been com-mitted and claiming damages. In December of that year heapplied to have the case struck off the roll, as he had no funds tocarry it on. In September, 1899, he applied to have the case puton the roll again, and a few days afterwards moved the Court tohave the case dismissed, on the ground that he had settled matterswith the defendant. The case was accordingly dismissed on the13th September, 1899. On the 24th April, 1900, he instituted thepresent action, alleging that, after the dismissal of the action,
1900.
October 19.Bonssb, C.J.
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1900.
October 19. adultery had still continued. It seems to me that the dismissalof the former action is a bar to the present action; that, by the
Bodsbb, C.J. continuance of adulterous intercourse, no fresh action accrued tothe plaintiff: the insult was completed; and I think the DistrictJudge ought not to have allowed the plaintiff to re-institute hisaction.
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