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Smt. Nasra Begum Vs. Rijwan Ali - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtAllahabad High Court
Decided On
Case NumberF.A.F.O. No. 418 of 1975
Judge
Reported inAIR1980All118
ActsMohamedan Law; Code of Civil Procedure (CPC) , 1908 - Sections 20
AppellantSmt. Nasra Begum
RespondentRijwan Ali
Appellant AdvocateBharat Ji Agrawal, Adv.
Respondent AdvocateRajeshwari Pd. and ;Rudreshwari Pd., Advs.
DispositionAppeal allowed
Excerpt:
family - dower - mohammedan law and section 20 of code of civil procedure, 1908 - an obligation imposed on husband as mark of respect for wife at time of marriage - agreement between husband and wife regarding payment of dower - place of agreement would be territorial jurisdiction to entertain suit for recovery of dower. - .....dower payable to her was fixed at rs. 50,000. out of this amount a sum of rs. 25,000 was to be her prompt dower and the rest her deferred dower. after their marriage the plaintiff and defendant lived at barabanki and a son was also born to them. subsequently relations between the plaintiff and her husband got strained and the plaintiff demanded payment of her prompt dower. the defendant instead of paying the money to the plaintiff turned her out of his house. the plaintiff thereupon filed suit no. 6 of 1974 in the court of civil judge for recovery of a sum of rs. 25,000 as her prompt dower and also for possession of certain ornaments. 3. the defendant contested the suit inter alia on the ground that the parties lived at barabanki, where their marriage was consummated and as the demand.....
Judgment:

Seth, J.

1. Plaintiff Smt. Nasra Begum has come up in appeal against the order dated 22nd Aug. 1975, passed by the Civil Judge, Bareilly, directing that the plaint filed by her be returned for presentation to proper court.

2. According to the plaintiff, she was married to defendant Rijwan Ali at Bareilly on October 20, 1963 and on that occasion the amount of dower payable to her was fixed at Rs. 50,000. Out of this amount a sum of Rs. 25,000 was to be her prompt dower and the rest her deferred dower. After their marriage the plaintiff and defendant lived at Barabanki and a son was also born to them. Subsequently relations between the plaintiff and her husband got strained and the plaintiff demanded payment of her prompt dower. The defendant instead of paying the money to the plaintiff turned her out of his house. The plaintiff thereupon filed suit No. 6 of 1974 in the court of Civil Judge for recovery of a sum of Rs. 25,000 as her prompt dower and also for possession of certain ornaments.

3. The defendant contested the suit inter alia on the ground that the parties lived at Barabanki, where their marriage was consummated and as the demand for dower is also said to have been made at Barabanki, the court at Bareilly had no territorial jurisdiction to try the suit.

4. The trial court observed that, correctly understood, dower under the Mohammedan Law is something which, notwithstanding any contract to the contrary, the wife, by virtue of entering into marriage contract, is entitled to get from her husband. It is a consideration for conjugal intercourse. Accordingly, the right to dower does not precede the right of cohabitation. It comes into existence at the same time by reason of the same incident of law as the right t'o cohabitation. The two rights come into existence simultaneously. It, therefore, concluded that the cause of action for a suit for prompt dower arises either at the place where the marriage was consummated or at the place where prompt dower was demanded after such consummation, and not at the place where the marriage was performed (inasmuch as the right to cohabitation and the right to dower come into existence simultaneously only after marriage). As in the instant case, on plaintiff's own showing, the marriage had been consummated at Barabanki and the demand for prompt dower was also made by her at that very place, the courts at Bareilly had no territorial jurisdiction to try the suit. The trial court, therefore, without going into any other controversy raised in the suit, passed the order under appeal directing that the plaint be returned t'o the plaintiff for presentation before a proper court.

5. Being aggrieved, plaintiff has come up in appeal before this Court and contends that the view of the trial court that in the circumstances, Bareilly court did not have territorial jurisdiction to try the suit, is erroneous, and that the impugned order deserves to be set aside.

6. It is true that under the Mohammedan Law, Mehr or dower means a sum of money or other property which the wife is entitled to receive from the husband in consideration of her marriage. However, the expression 'consideration' is not to be understood in the sense in which the word is used in the Contract Act. In effect dower is an obligation imposed upon a husband as mark of respect for the wife. Normally the extent of such obligation is determined by the contract entered into between the husband and the wife either before or at the time of marriage. It may be fixed even after the marriage has taken place. If the amount of dower is not fixed or the marriage has been performed on express condition that the wife will not' claim, any dower, the wife is even then entitled to receive proper dower (mehr-i-misi) from her husband. The wife can refuse to live with her husband and admit him to sexual intercourse so long as the prompt' dower is not paid to her (Baillies Digest of Mohammedan Law pages 124-125). We are, therefore unable to agree with the trial court that the right to claim prompt dower does not precede cohabitation (and comes into existence along with it.

7. In our opinion in a case where there has been an agreement between the parties at the time of their marriage with regard to the amount of dower payable by the husband, the amount becomes recoverable under the agreement. The agreement between the husband and wife for payment of dower undoubtedly is part of the cause of action for maintaining a suit for its recovery and the place where such agreement was entered into would be a place where a part of cause of action for such suit arises.

8. In the instant case the agreement to pay dower was entered into at the time of marriage at Bareilly. Bareilly courts would therefore, have territorial jurisdiction to try the suit. The order under appeal cannot be sustained and has to be set aside.

9. In the result the appeal succeeds and is allowed. The order of the Civil Judge dated 22nd August 1975 directing that the plaint be returned for presentation to proper court is set aside. The Civil Judge who has jurisdiction to deal with the suit shall proceed to decide the same in accordance with law. In the circumstances we direct the parties to bear their own costs in this appeal.


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