Report No. 86
IV. Female Members Marrying into another Family
7.25. Section 4(1) and cases of Muslim females marrying into another family. -
One more question arising out of section 4(1) may now be considered. There is a conflict of decisions on the question whether a female member marrying into another family ceases to be a "member" (within the meaning of section 4). The view of the Bombay High Court1 is that when a Muslim woman leaves the family house to live in her husband's house, she prima facie gives up her intention to reside in the house, and is not therefore entitled to apply under section 4. This was on the ground that a person who was not in occupation and who had no intention of occupying could not be entitled to apply under section 4.
A woman who marries and goes to live in her husband's house (it was stated), prima facie gives up her intention of continuing to reside in her old house. But the Madras view2 is that she does not cease to be a "member" of the family. The Judgment rests on two considerations-(i) marriage under the Muslim law is a contract and no question of change of status arises, (ii) under section 4, it is not necessary that the co-sharer applying for leave should continue to be a member of the family. It is enough if she is entitled to a share on partition.
1. Bai Fatima v. Gulam Nabi, AIR 1936 Born 197 (199) (Macklin, J.).
2. Rukia v. Rajia Bibi, AIR 1963 Mad 298.