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Mt. Khairan Nissa Vs. Mahamad HussaIn Bara - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Reported inAIR1936Cal627
AppellantMt. Khairan Nissa
RespondentMahamad HussaIn Bara
Excerpt:
- m.c. ghose, j.1. this is an appeal by a wife against her husband claiming deferred dower money of rs. 1,000. the defendant husband is a clerk at shillong on a salary of rs. 110 per month. he had married the plaintiff, and apparently they lived together for a period of 14 to 15 years, at the end of which there was disagreement between the parties and she thereafter left his house and went to live with her parents at sibsagar. her case was that she was driven out of the house at shillong. the defendant's case was that she became extremely insubordinate and of her own accord she left his protection after he had duly pronounced a divorce on 2nd may 1927. after the separation she instituted a maintenance case under section 488, criminal p. c., and apparently obtained an ex parte order, but.....
Judgment:

M.C. Ghose, J.

1. This is an appeal by a wife against her husband claiming deferred dower money of Rs. 1,000. The defendant husband is a clerk at Shillong on a salary of Rs. 110 per month. He had married the plaintiff, and apparently they lived together for a period of 14 to 15 years, at the end of which there was disagreement between the parties and she thereafter left his house and went to live with her parents at Sibsagar. Her case was that she was driven out of the house at Shillong. The defendant's case was that she became extremely insubordinate and of her own accord she left his protection after he had duly pronounced a divorce on 2nd May 1927. After the separation she instituted a maintenance case under Section 488, Criminal P. C., and apparently obtained an ex parte order, but when she proceeded to execute the order the defendant in 1930 produced the Talaknama and thereupon the Court dismissed the plaintiff's maintenance suit. The plaintiff's case was that she came to know of the Talaknama in January 1930. Thereafter, on 15th July 1930, the present suit was instituted. The plaintiff being a poor destitute woman was allowed to sue as a pauper.

2. The trial Court dismissed the suit on the ground of limitation. The Court found that the Talaknama was pronounced on 2nd May 1927. As a period of three years had elapsed from the date of the divorce the claim for dower money was extinguished by limitation. In appeal by the plaintiff the Court of appeal below affirmed the finding of the trial Court and held that the claim for dower money was barred by limitation. For the first time in the Court of appeal the plaintiff urged that if the claim for Rs. 1,000 be barred by limitation the plaintiff may be granted a decree on the basis of the deed of divorce produced by the defendant, for in that Talaknama executed by the defendant on 2nd May 1927 he stated that he would pay the dower money of Rs. 1,000 by monthly instalment, of Rs. 20. The Court of appeal below held that the claim for a monthly instalment was not made in the plaint nor in the first Court, and as she never accepted the offer made by the defendant in the Talaknama she was not entitled to a decree.

3. The first point in appeal is whether the plaintiff's claim is governed by Article 116, Lim. Act, on the ground that the deed of dower was registered according to the Mahomedan Marriage Registration Act of 1876. The argument appears to be without substance, for there is apparently no Kabinnama registered even under the Mahomedan Marriage Registration Act. All that there is is the certified copy of the marriage from the register of the Mahomedan Marriage Registrar. In that copy there is a column stating that the prompt dower was Rs. 500 and the deferred was Rs. 1,000. Apart from this there is no other document registered or unregistered. It cannot be said merely because the amount of the deferred dower was stated in the marriage which was registered under the Marriage Registration Act that the matter of the dower was in a registered document.

4. The next point is whether the plaintiff's claim for Rs. 20 a month according to the Talaknama executed by the defendant can be granted to her. On behalf of the plaintiff it is urged that though the plaintiff claims the whole of Rs. 1,000 in the suit, in the third prayer made by her in the plaint she stated that if for any reason the whole of the dower money could not be granted, anything which the plaintiff was found entitled to might be decreed to her, and that this prayer is sufficiently wide to allow her to take advantage of the offer which the defendant made in the Talaknama. On the other side it is urged that though she was duly informed of the Talaknama in May 1927 she refused to accept the Talaknama. She made a case in the criminal Court claiming maintenance from her husband and he was dragged to the criminal Court and he had to defend himself there. Then she brought three suits, one suit for her ornaments which she said had been kept by the husband, and obtained a decree for Rs. 800, and a second case claiming that the Talaknama was inoperative until 2nd January 1930 when she first came to know of it. That suit was dismissed, it being found that she knew of the Talaknama in May 1927. The present is a third suit instituted by her. It is urged that the husband is a poor clerk and that it was her refusal to live with the husband's mother which led to disagreement and the defendant was forced to divorce her on the ground of her unreasonable conduct and that in spite of the Talaknama of May 1927 she spurned his offer of Rs. 20 a month and even in the plaint she made no claim on that basis and it was not till the appeal Court that she for the first time claimed Rs. 20 a month on the basis of the Talaknama.

5. The matter is not free from difficulty. When a disagreement occurs between a husband and a wife it is very difficult to apportion the blame. It may be stated that the defendant may reasonably complain of the conduct of the plaintiff in the three years following the divorce in May 1927. But when all things are considered it is to be noted that this poor woman lived with him as his wife for a period of 15 years, that is to say, during the period of the bloom of her youth and now when her early youth is gone she has been divorced. Apparently the defendant himself felt it right to state in the deed of divorce that he would pay her deferred dower of Rs. 1,000 in instalment of Rs. 20 a month.

6. Having regard to all the circumstances it appears fair and equitable that the plaintiff should be allowed an instalment decree of Rs. 20 a month. It is, however, to be noted that the claim at Rs. 20 a month arose on 2nd May 1927 when the divorce was pronounced. The claim for each month would be barred at the end of three years. In that view when the suit was instituted on 15th July 1930 the claim for three months, namely, Rs. 60, was barred by limitation. She is, therefore, now entitled to get only the balance of the deferred dower, namely Rs. 940 at the rate of Rs. 20 a month. Let a decree be made accordingly that she is entitled to a decree for Rs. 940 in all, but that it will be paid to her by the defendant at the rate of Rs. 20 a month until the sum is liquidated. The appeal is accordingly allowed and the plaintiff's suit decreed in part. Having regard to all the circumstances the parties will bear their own costs throughout. Leave to appeal is refused.


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