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Mohd. Ibrahim Vs. Mehrunisa Begum - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKarnataka High Court
Decided On
Case NumberM.F.A. No. 2591 of 2003
Judge
Reported inAIR2004Kant261
ActsMuslim Law; Family Court Act, 1984 - Sections 7; Muslim Personal Law (Shariat) Application Act, 1937 - Sections 2
AppellantMohd. Ibrahim
RespondentMehrunisa Begum
Advocates:F.S. Dabali, Adv.
DispositionAppeal dismissed
Excerpt:
.....by attempts at reconciliation between the husband and the wife' by two arbiters -one from the wife's family and the other from the husband's if the attempts fail, talaq may be effected (para 13). in rukia khatun's case, the divisional bench stated that the correct law of talaq, as ordained by holy quaran, is; if their attempts fail, talaq' may be effected. if the attempts fail, talaq may be effected. the appellant ought to have lead satisfactory evidence to prove, the pronouncement of talaq on 22-5-2002; 23-6-2002; 24-7-2002. having failed to do so, no exception can be taken to the finding of the family court negativing the plea of divorce taken by the appellant. the allegation that the respondent-plaintiff did not beget children and did not satisfy the demand of the appellant for..........by attempts at reconciliation between the husband and the wife' by two arbiters -- one from the wife's family and the other from the husband's if the attempts fail, talaq may be effected (para 13). in rukia khatun's case, the divisional bench stated that the correct law of talaq, as ordained by holy quaran, is; (i) that 'talaq' must be for a reasonable cause, and (11) that it must be preceded by an attempt of reconciliation between the husband and the wife by two arbiters, one chosen by the wife from her family and the other by the husband from his. if their attempts fail, 'talaq' may be effected. the division bench expressly recorded its dissent from the calcutta and bombay view which, in their opinion, did not lay down the correct law.we are in respectful agreement with the.....
Judgment:

Ram Mohan Reddy, J.

1. The defendant husband, being directed to pay maintenance at Rs. 1,300/- p.m. to the plaintiff-wife by the Court of the Judge, Family Court, Raichur (for short the 'Family Court') by Judgment and order dated 11-3-2003 passed in O.S. No. 11/02, has preferred this appeal under Section 19(1) of the Family Courts Act, 1984 (for short the 'Act').

2. The facts, in brief, as stated in the plaint and set out in the impugned Judgment are as under :

The parties are legally wedded, the marriage having taken place on 26-4-1987 at village Talmari, District Raichur, in accordance with the customs prevailing in their community. At the time of marriage, the parents of the plaintiff-wife are said to have paid a sum of Rs. 80,000/- in cash, five tolas of gold and other costly household articles to the defendant. Subsequently, the defendant husband is said to have extracted some more money from the parents of the plaintiff-wife on the pretext of purchasing plots/houses at Kulsumbi colony and in that regard, the plaintiff-wife had secured Rs. 25,000/- from her parents which was handed over to the defendant-husband. The defendant has purchased properties at Kulsumbi colony in his own name. Thereafter, it is alleged that the defendant changed his attitude towards the plaintiff wife and started demanding monies at the time of festivals in order to meet his habits of addiction to drinking, gambling and womanizing. The plaintiff having come to know the vices of the defendant only 4 or 5 years prior to the suit, the defendant started harassing the plaintiff despite the elders of the community having advised the defendant to behave properly. It is further alleged that during Ramzan, prior to filing the suit in the year 2002, the plaintiff was at her parents house for the festival, where the defendant came and assaulted the plaintiff on the ground that she had failed to bear any children. It is further contended that the defendant deserted the plaintiff, since then, as a result the plaintiff had to take shelter with her aged parents. It is the case of the plaintiff that the defendant contracted a second marriage and is living with the 2nd wife at Raichur. When the plaintiff approached the defendant during the month of April, 2002, he said to have beaten her mercilessly, as a result of which the plaintiff wife had to register a complaint against the defendant under Sections 498A and 324 of the Indian Penal Code, which is said to be pending before the JMFC Court at Raichur. Thereafter, it is said that the plaintiffs health deteriorated and as she required constant medical treatment for which she had to raise loans, as she did not have any income of her own. The plaintiff claims that the defendant is a wealthy person drawing a salary of Rs. 6,000/- p.m. and has ancestral properties, the income there from, if added, would amount to not less than Rs. 15,000/- p.m. The defendant failed to maintain the plaintiff wife and hence the suit seeking maintenance.

3. The defendant, on notice, filed his written statement denying all the material averments in the suit, but however, admitted the relationship while contending that the plaintiff had given her consent for the 2nd marriage and both wives have lived together under the same roof. The defendant husband claims that the plaintiff wife on her own abandoned the matrimonial home and stayed with her parents and in spite of repeated attempts for mediation and for settlement made by the Khazi failed, therefore, the defendant on 22-5-2002 sent a written notice of talaq returnable divorce which was received by the plaintiff, but to which there was no reply. Again on 23-6-2002, the defendant is said to have sent 2nd written notice of talaq to the plaintiff by 'registered post acknowledgment due' which was returned unserved. Finally, the defendant sent another talaq to the plaintiff by written notice dated 24-7-2002 along with a Demand Draft for Rs. 4,675/- being the mehar amount and maintenance during iddath period, which was returned with postal endorsement as 'refused'. The further allegation of the defendant was that the plaintiff was hail and healthy, hails from a rich family holding irrigated lands and also a tailor, by occupation from which the plaintiff has an income of Rs. 1,000/- p.m. The defendant claimed to be driver in the employment of the North East Karnataka Road Transport Corporation drawing a salary as the only income and having no other source. He claims that the said income was meagre and was grossly insufficient to maintain his family consisting of his aged parents, unmarried sisters and 2nd wife and since the plaintiff was divorced under the Muslim Personal Law, she was not entitled to maintenance and therefore, sought for dismissal of the suit.

4. On the above pleading of the parties , the Family Court framed the following issues :

i) Whether the plaintiff proves that, the defendant ill treated her for the sake of dowry and also for the reason that, she failed to beget children and thereafter deserted her as contended in the plaint ?

ii) Whether the plaintiff proves that, the defendant having deserted her, neglected her completely and she has no source of income to maintain herself ?

iii) Whether the plaintiff proves that, she is entitled for the maintenance as claimed in the suit ?

iv) Whether the defendant proves that, the plaintiff is not entitled to claim any maintenance as he has divorced her as per the 'Shariat-Law' as contended in the written-statement ?

v) To what relief the parties are entitled to?

vi) What order or decree ?

5. The plaintiff examined herself as PW 1 and also examined three other witnesses as PWs 2, 3 and 4 in support of her case and marked 5 documents as Exhibits P1 to P5. While the defendant examined himself as DW 1 and another witness as DW 2, marked 11 documents as Exs. D1 to D11.

6. The Family Court, having considered the oral and documentary evidence adduced by the parties, negatived the plea of talaq raised by the defendant, so also, the plea of consent by the plaintiff for contracting the 2nd marriage by the defendant and the plea that the plaintiff had her own income, while affirming the plea of the plaintiff that the defendant had deserted her, as well as directed the defendant to pay maintenance of Rs. 1,300/- p.m. to the plaintiff from the date of suit till her life with costs of the suit. The defendant husband being aggrieved by the said judgment and order of the Family Court, has preferred this appeal.

7. The learned counsel for the appellant husband sought to contend that the talaq given by the defendant is legal and binding and therefore, the finding of the Family Court that the divorce was invalid, is perverse. He next contends that the appellant has satisfactorily proved the fact that the plaintiff-wife extended her consent for the defendant to contract a 2nd marriage, which fact though considered by the Family Court, has rendered an erroneous finding to the contrary. He also contends that the appellant had not deserted the plaintiff, but the plaintiff on her free will and volition, left the matrimonial home to stay with her parents and despite all efforts, she refused to return to the matrimonial home. Lastly, the learned counsel contends that the appellant is required to maintain his aged mother, 2nd wife and children, unemployed brothers, with the take home salary of Rs. 2,331-10 ps. per month after deductions from the gross salary of Rs. 6,264/- per month which is insufficient. In this view of the matter, he contends that direction of the Family Court to pay Rs. 1,300/- to the plaintiff-wife is unjust, excessive and on higher side.

8. Having heard the learned counsel for the appellant, the questions that arise for determination in this appeal are :

1. Whether the Family Court was justified in rejecting the plea of the appellant that he had divorced the respondent in accordance with the 'Shariat Law' disentitling the respondent to claim compensation ?

2. Whether the Family Court was justified in recording a finding of desertion of the wife by the appellant entitling the respondent to maintenance at Rs. 1,300/-p.m.?

3. Whether the sum of Rs. 1,300/- p.m. ordered by the Family Court towards maintenance of the respondent-wife, is excessive, unjust and on the higher side, as contended by the appellant ?

POINT NO. 1 :

9. Before proceeding to answer the questions formulated in this appeal, it is useful to extract the observations made by the Apex Court in Shamim Ara v. State of Uttar Pradesh, AIR 2002 SC 3551;

'There is yet another illuminating and weighty judicial opinion available in two decisions of Gauhati High Court recorded by Baharul Islam, J. (later a Judge of the Supreme Court of India) sitting singly in Sri Jiauddin Ahmed v. Mrs. Anwara Begum (1981) 1 Gauhati LR 358 and later speaking for the Division Bench in Must. Rukia Khatun v. Abdul Khalique Laskar (1981) 1 Gauhati LR 375. In Jiauddin Ahmed's case, a plea of previous divorce i.e. the husband having divorced the wife on some day much previous to the date of filing of the written statement in the Court was taken and upheld. The question posed before the High Court was whether there has been valid talaq of the wife by the husband under the Muslim Law The learned Judge observed that though marriage under the Muslim Law is only a civil contract yet the rights and responsibilities consequent upon it are of such importance to the welfare of humanity, that a high degree of sanctity is attached to it. But in spite of the sacredness of the character of the marriage-tie, Islam recognises the necessity, in exceptional circumstances, of keeping the way open for its dissolution (Para 6). Quoting in the judgment several Holy Quaranic verses and from commentaries thereon by well recognised scholars of great eminence, the learned Judge expressed disapproval of the statement that 'the whimsical and capricious divorce by the husband is good in law, though bad in theology' and observed that such a statement is based on the concept that women were chatted belonging to men, which the Holy Quaran does not brook. The correct law of talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife' by two arbiters -- one from the wife's family and the other from the husband's if the attempts fail, talaq may be effected (Para 13). In Rukia Khatun's case, the Divisional Bench stated that the correct law of talaq, as ordained by Holy Quaran, is; (i) that 'talaq' must be for a reasonable cause, and (11) that it must be preceded by an attempt of reconciliation between the husband and the wife by two arbiters, one chosen by the wife from her family and the other by the husband from his. If their attempts fail, 'talaq' may be effected. The Division Bench expressly recorded its dissent from the Calcutta and Bombay view which, in their opinion, did not lay down the correct law.

We are in respectful agreement with the abovesaid observations made by the learned Judges of High Courts. We must note that the observations were made 20-30 years before and our country has in recent times marched steps ahead in all walks of life including progressive interpretation of laws which cannot be lost sight of except by compromising with regressive trend's. What this Court observed in Bai Tahira v. Ali Hussain, : 1979CriLJ151 : 1979 Cri LJ 151, dealing with right to maintenance of a Muslim divorcee is noteworthy. To quote :

'The meaning of meanings is derived from values in a given society and its legal system. Article 15(3) has compelling compassionate relevance in the context of Section 125 and the benefit of doubt, if any in statutory interpretation belongs to the ill-used wife and the derelict divorcee. This social perspective granted, the resolution of all the disputes projected is easy. Surely, Parliament, in keeping with Article 15(3) and deliberate by design, made a special provision to help women in distress cast away by divorce. Protection against moral and material abandonment manifest in Article 39 is part of social and economic justice, specification in Article 38, fulfilment of which is fundamental to the governance of the country (Article 37). From this coign of vantage we must view that the printed text of the particular Code.' (Para 7)

'Law is dynamic and its meaning cannot be pedantic but purposeful.'

10. Applying the principles of law set out above to the facts of this case, at the out set, we are of the opinion that there is no proof of talaq having taken place on 22-5-2002 or 23-6-2002 or 24-7-2002. It is not in dispute that the marriage between the parties took place on 26-4-1987 in accordance with the customs of their community and that out of the wedlock, they did not beget any children. It is also an admitted fact that during the subsistence of the marriage between the parties, the appellant took a 2nd wife without divorcing the first wife, respondent plaintiff. According to the defendant husband, the respondent-wife was a quarrelsome person and would frequent her parent's house leaving the company of the appellant without his prior consent. It is also not in dispute that the parties lived together for a period of 14 years without any difference having arisen until the appellant contracted a 2nd marriage. The version of the appellant is that the desertion by the wife respondent, was the cause for him to divorce the respondent by notices dated 22-5-2002, 23-6-2002 and 24-7-2002 as at Exs. D1, D4 and D6 respectively, preceded by a request to the Khazi to resolve the dispute.

11. According to the Shariat Law, the correct law of talaq as ordained by the holy Quran is that, talaq must be for a reasonable cause and preceded by attempts for reconciliation between the husband and wife by two elders, one by wife's family and the other from the husbands family. If the attempts fail, talaq may be effected. Having perused the impugned Judgment and Order, we are of the considered view that the plea of the appellant, as taken in the written statement and in these Exhibits D1, D4 and D6 cannot be treated as having the effect of 'pronouncement' of talaq. The appellant ought to have lead satisfactory evidence to prove, the pronouncement of talaq on 22-5-2002; 23-6-2002; 24-7-2002. Having failed to do so, no exception can be taken to the finding of the Family Court negativing the plea of divorce taken by the appellant. Hence, Point No. 1 is answered in the affirmative.

POINT No. 2:

12. The evidence of PW 1, the respondent-wife reiterating the averments set out in the plaint, is supported and corroborated by the testimony of PW 2 Rehmuddin and PW 3 Basheeruddin, the two villagers of Yergere. While the fact of payment of cash of Rs. 80,000/- and Rs. 25,000/- , appears to be not inconsistent regarding the actual amount demanded by the defendant as observed by the Family Court in its Judgment. The allegation that the respondent-plaintiff did not beget children and did not satisfy the demand of the appellant for dowry and consequent ill treatment, are well corroborated by the evidence of PWs 2 and 3. Keeping in mind, the fact that the parties had lived together happily for a period of 14 years and the admission that the appellant had taken a 2nd wife and thereafter, the troubles commenced, coupled with the fact that the plaintiff respondent did not beget any children out of the marriage , one can reasonably conclude that the appellant was not interested in the respondent plaintiff after the 2nd marriage. The evidence of PW 2 and 3 support the case of the respondent-plaintiff that she was ill treated at the hands of the defendant and forced to live separately, is well established, The appellant has not placed any material to substantiate the fact that the respondent-plaintiff had extended any consent for the 2nd marriage. The Family Court while considering the statement at Ex. P3 concluded that the said agreement was one executed by the appellant-defendant in the presence of several witnesses stating that he is contracting a 2nd marriage since the respondent-plaintiff did not beget any children and in that regard, in order to safeguard the interest of the respondent-plaintiff, in the event of any difference between the two wives, he has relinquished his right in favour of the respondent-plaintiff the house bearing No. 11/ 72 situated at village Yergere. The Family Court observed that this document did not establish the defence of the appellant that the respondent-plaintiff had extended her consent for the 2nd marriage. After the execution of the said settlement deed and contracting the 2nd marriage, the differences between the parties appeared to have surfaced to the extent that the respondent-wife had suffered ill treatment at the hands of the appellant forcing her to lodge a police complaint against the appellant. The oral evidence lead by the respondent-plaintiff establishes that due to ill treatment of the respondent-plaintiff by the defendant, she had no other option, but to take shelter in her parents house. In the absence of any contra evidence by the appellant with regard to his attempts to have respondent-plaintiff to return to the matrimonial home, it can be said that the defendant had failed to establish his defence and that the respondent-plaintiff had a just cause from staying away from the appellant-respondent. Therefore, point No. 2 is answered in the affirmative.

POINT No. 3:

13. It is an admitted fact that after the respondent-plaintiff had been deserted by the appellant, he did not provide any maintenance to the plaintiff. The respondent-plaintiff has averred that her aged parents are unable to maintain, her and since she has no independent income of her own, she is entitled to maintenance. The appellant-husband having alleged that the respondent/plaintiff was earning Rs. 1,000/- p.m. out of tailoring work, failed to establish the same in evidence. In the absence of any credible evidence to show that the respondent-plaintiff had an independent income of her own and even if the father and the brothers of the respondent-plaintiff had income of their own, the appellant cannot be absolved of his liability in law, to maintain his wife. The Family Court keeping in mind the fact that the appellant had contracted the 2nd marriage without the consent of the plaintiff and the fact that the appellant had deserted his wife, concluded that the plaintiff wife cannot be asked advise to join the appellant-husband. It is not in dispute that the appellant is working as a driver in NEKRTC and drawing a salary of Rs. 6,500/-p.m. Though the plaintiff-wife had contended that the appellant-husband has several ancestral properties from which he receives handsome income, the same is not substantiated by any documentary evidence. The gross salary of the appellant for the month of July, 2002 is said to be Rs. 6,264 and after deducting amounts towards Provident Fund Loan and Society loan, the take home salary was claimed to be Rs. 2,31.10 ps. The Family Court found that the deductions were not statutory deductions. The Family Court keeping in mind the social status of the parties, a relevant consideration and the fact that the respondent-plaintiff was required to be maintained to lead a decent life, ordered payment of Rs. 1,300/- p.m. towards maintenance. In the facts and circumstances of the case and evidence on record, the order of payment of maintenance of Rs. 1,300/- p.m. cannot be said to be unjust, excessive or on the higher side.

14. For the reasons set out supra, the appeal is devoid of merits and is dismissed at the stage of admission without notice to the respondent. No order as to costs.


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