THE HON’BLE SRI JUSTICE ASHUTOSH MOHUNTA AND THE HON’BLE SRI JUSTICE M. SATYANARAYANA MURTHY A.S No. 1466 OF 2002 DATED: 24-01-2014 Between:
Syed Mustafa Mohamood Khundmiri And Syed Bibi Kudbanu Irfan … Appellant … Respondents THE HON’BLE SRI JUSTICE ASHUTOSH MOHUNTA AND THE HON’BLE SRI JUSTICE M. SATYANARAYANA MURTHY A.S No. 1466 OF 2002 JUDGMENT: (per the Hon’ble Sri Justice Ashutosh Mohunta) This appeal is filed being aggrieved by the judgment and decree dated 18-06-2002 made in O.S No. 26 of 1997 on the file of the learned Judge, Family Court, Hyderabad wherein the suit filed by the respondent was decreed in part granting divorce and other reliefs.
The facts, in brief, necessary for the disposal of the appeal are as under:
The appellant is the husband and the respondent is the wife. Initially, the appellant - husband filed O.S No. 132 of 1996 against the respondent - wife for restitution of their marriage. The respondent - wife also filed O.S No. 26 of 1997 for the relief of divorce from the appellant; for recovery of mahr of 11 tulas of pure gold or its value; for returning of jahez articles and Jodah Godah worth about Rs. 75,000/- and cash of Rs.60,000 and maintenance at Rs.1,000/- per month. Since both the suits arose between same parties, the trial Court clubbed and heard them together.
O.S No. 132 of 1996 was filed by the appellant against the respondent for restitution of their marriage that took place on 16-11-1995 as per Mehdvi Sect of Muslim free from the evils of dowry and jahez. It was stated that the mahr fixed was 11 tulas of pure gold and the appellant had given 12 tulas of gold jewellery to the respondent on the very date of marriage which was covered by videography. According to the appellant, after the marriage, they both resided in his house bearing door No.1-5-356, Zamistanpur; that he provided the respondent all amenities beyond her expectations out of his love and affection and treated her in a dignified manner. However, they lived amicably for a few days and inasmuch as from the beginning of the marriage, the respondent was insisting for setting up a separate family for which the appellant did not agree as he was not willing to leave his old aged parents and, therefore, the respondent adopted negative attitude towards the appellant and his family members and discharged her matrimonial obligations in a reprehensible manner and frequently went to her parents house. It is the case of the appellant that he made several persuasions, but in vain. Even though he was looking after her with utmost love and affection, she made him with no mental peace and that in the last week of January, 1996, she left his company without his permission under the influence of her parents and did not turn up to join him. The appellant further stated that while leaving the house, the respondent took away all costly clothes, gold ornaments and all jewellery on the pretext that those things belong to her. The efforts made by the appellant through his parents and elders in September and October, 1996 were in vain and ultimately the respondent did not join him. The appellant stated that he is ready and willing to take her back always for marital life and in need of conjugal life and that he issued legal notice dated 04-10-1996 asking the respondent to join him and as she failed to comply the same, the suit for restitution of conjugal rights.
The respondent - wife filed written statement admitting her marriage with the appellant and that they belong to Mehdvi Sect of Muslim who believe in the marriage free from the evils of dowry and jahez. She denied that 12 tulas of gold jewellery was given to her in lieu of mahr. It is her case that the appellant though belongs to Mehdvi Sect demanded and collected Rs.60,000/- in cash and gold jewellery, silver ornaments, cot etc., approximately valuing Rs.75,000/- from her parents by way of Joda and jahez articles. Instead of mahr of 11 tulas of pure gold, the appellant had given her a small golden necklace and a set of ear rings merely weighing two tulas at the time of Jalwa which are also in his possession. The respondent further stated that after she had gone to marital house, her hopes were mused for no love and affection, care and tender treatment from him and his parents, brothers, sister and other family members. The appellant and her family members demanded additional dowry of Rs.3,00,000/- and that the wife of the brother of the appellant also meted the same treatment and relieved of her matrimonial bonds as she took Qula. The appellant has illicit intimacy with the wife of another brother by name Sofia and that the behaviour of the parents and sister of the appellant was unbearable. She denied the averments made by the appellant that they all treated her with care, love and affection stating that she experienced a hell in her conjugal life and that she never demanded for setting up a separate family away from his parents and other family members. According to the respondent, since she expressed her inability to secure the additional dowry of Rs.3,00,000/- she was illtreated and that the respondent made a bad propaganda as if the conduct and character of her sisters is questionable. It is her case that the appellant left her at her parents’ house on 21-09-1996 with a promise to take her back the same evening but did not do so. In view of the harassment faced by her she stayed with her parents and filed a criminal case against the appellant and his family members under Section 498-A IPC, that the appellant agreed before the police to give her divorce within three days and now filed the suit for restitution of conjugal rights only to avoid return of dowry and mahr. She never left his society on her own and in fact she was forced to decide to relieve from the matrimonial bond and the allegation that she took costly clothes and gold ornaments and jahez articles was also denied. The respondent however admitted mediations through the alleged relatives. But she stated that the mediators tried not to convince her for restitution but for Qula so that the appellant can avoid mahr and jahez articles. The respondent stated that she did not receive notice dated 04-10-1996 and that she is ready to give divorce if he pronounces talak and gives the alleged mahr and jahez articles.
The respondent also filed O.S No. 26 of 1997 seeking divorce against the appellant and for recovery of mahr of 11 tulas of pure gold or its value; return of jahez articles; Jodah Godah worth about 75,000/-;
cash of Rs.60,000/- and maintenance at Rs.1,000/- per month. In the plaint, she almost made the averments similar to the one made by her in the written statement filed by her in the suit instituted by the appellant i.e., O.S No. 132 of 1996. She also contended that she is leading life at the mercy of her parents and relatives and unable to eke out her livelihood and, therefore, she requires at least Rs.1,000/- per month towards maintenance from 21-01-1996 to eke out her livelihood.
The appellant filed written statement to the suit filed by the respondent wife contending that the suit filed by the respondent herein is liable to be dismissed in limini. The appellant further stated that he belongs to highly respectable, religious and pious family of Mehdvi Sect in which the marriages are free from the evils of dowry and jahez articles; that himself and his family members never demanded nor taken any dowry much less jahez articles like gold jewellery or silver or cash of Rs.60,000/- towards Jodah Godah and that there was no demand for additional dowry of Rs.3,00,000/-. Even though himself and his family members treated the respondent with care, love and affection, she only stayed for a short period of one and a half months after marriage and it was she who insulted, harassed and humiliated him and his family members and demanded to set up a separate family away from his aged parents. The appellant stated that the respondent is educated having completed B. Ed and is working in a school as a teacher. He claimed that his brothers and sisters are all married residing out side Hyderabad in view of their employment and he is the only son residing with his parents who are aged and illhealth and taking advantage of his absence, the respondent abused, insulted and harassed his parents. The appellant further stated that the respondent demanded him to come to her parents’ house as an illotom son-in-law even though her four sisters are to be married. He contends that as agreed he paid the entire mahr of 11 tulas of pure gold and in addition to that out of love and affection, he had given one more tula of gold.
According to the appellant, the respondent is fickle minded, suspicious, imbalanced and rude and that she even went to the extent of attributing illicit intimacy with his eldest sister-in-law who lives at Rajahmundry with her husband and two children. Regarding the issue of divorce of his second brother with his wife, the appellant stated that the said issue is immaterial for the present proceedings. The appellant further stated that the respondent insisted for partition of the property and to give his share for performing the marriage of her sisters. It is the case of the appellant that on 21-09-1996 the respondent without any cause and without informing and taking his consent and the consent of his parents left to her parents’ house creating a scene at their house. Later, the parents of the appellant made efforts to bring her back but she refused to join him unless he comes as illotom son-in-law. The appellant stated that the brother of the respondent Khasim is an advocate and his father is a Jailor. The respondent filed criminal complaint against the appellant on 03-12-1996 in Crime No. 378 of 1996 for the offence under section 498-A IPC and got arrested himself and his parents. Later, the parents of the appellant were released on bail. According to the appellant, this conduct of the respondent reveals that she is sadistic mentally. The respondent working as a teacher is earning Rs.3,000/- per month and apart from that she had also took valuable articles while leaving their house claiming them to be her. The appellant also stated that he is prosecuting his graduation and in view of the fact that the respondent has implicated his parents in the criminal case, they turned against him and, therefore, he is on penny less and literally on the streets. Hence, he filed I.A No. 337 of 1997 in O.S No. 132 of 1996 seeking maintenance from the respondent.
Since reconciliation failed in both the suits, the trial Court framed necessary issues for settlement and thereafter, re-casted the issues as under:
1) Whether the plaintiff (respondent-wife herein) is entitled to divorce from the defendant (appellant-husband herein) under the Dissolution of Muslim Marriage Act, 1939?
2) Whether the plaintiff is entitled to recovery of jahez articles and Jodah Godah amount claim of Rs.75,000/- or any amount?
3) Whether the plaintiff is entitled to Mahr amount of 11 tulas of pure gold or its value?
4) Whether the plaintiff is entitled to maintenance from the defendant from 21.1.1996 till date of divorce sought in the suit?
5) To what relief?
Since both the suits were clubbed together, the evidence in both the suits was also common. During the course of trial, on behalf of the respondent-wife, PWs 1 and 2 were examined and Exs.A-1 to A- 26, A-24(A) and Exs.B-1(A) to B-10(A) were got marked. On behalf of the appellant-husband, DWs 1 to 3 were examined and Exs.B-1 to B- 14 and also Exs.C-1 and C-1(A) were got marked.
The trial Court after hearing both sides and on perusing the material available on record, dismissed O.S No.132 of 1996 filed by the appellant for restitution of conjugal rights and decreed in part O.S No. 26 of 1997 filed by the respondent granting divorce dissolving the marriage between the appellant and the respondent as per Section 2 of the Dissolution of Muslim Marriage Act 1939 on the grounds of cruelty, constructive desertion, the appellant's failure to maintain the respondent and further on account of irretrievable break down of marriage with no possibilities of reunion. Towards maintenance of the respondent from 21-01-1996 till the date of decree and for her whole life in addition to what she is capable of earning, a sum of Rs.25,000/- was awarded taking into consideration her earning capacity. Insofar as mahr is concerned, the trial Court ordered that the respondent is entitled to receive nine tulas of pure gold, the value of which was assessed at Rs.50,000/- as per the value prevailing at that time. The trial Court also awarded an amount of Rs.25,000/- towards the jahez articles. Thus, in all, a sum of Rs.1,00,000/- was awarded to the respondent to be payable by the appellant within one month from the date of decree failing which the respondent was at liberty to recover the said amount with interest at 15% per annum from the date of decree till realisation with costs of execution.
Aggrieved by the judgment and decree dated 18-06-2002 passed by the learned Judge, Family Court, Hyderabad in O.S No. 26 of 1997, the appellant has preferred the present appeal.
In this appeal, learned counsel for the appellant - husband contended that the trial Court has no jurisdiction to try the claims of muslim women like maintenance, recovery of mahr amount, jahez articles and Jodah Godah amount and that under Section 3 of the Muslim Women (Protection of rights on divorce) Act, 1986 the matter is traibale by a Magistrate having jurisdiction. There was no mention made by the respondent about the jahez list either in the plaint in O.S No. 26 of 1997 or in the written statement filed in O.S No. 132 of 1996 and, therefore, it is clear that the same was not in existence at the time of filing of the suit and hence it is a fabricated one. She further contended that the respondent filed O.S No. 26 of 1997 seeking dissolution of the marriage on the ground of cruelty. With similar allegations she also filed CC No. 79 of 1997 before the learned XIII Additional Chief Metropolitan Magistrate, Hyderabad under Section 498-A IPC which was dismissed by the learned Magistrate on 30-04- 2004 holding that the there was no cruelty on the part of the appellant. Therefore, the decree passed by the trial Court granting divorce on the ground of cruelty is liable to be set aside. She further contended that the respondent had married another person and in support of her contention she filed copy of the order dated 01-05-2008 passed in Writ Petition No. 9470 of 2008 wherein the respondent had sought for a direction to the respondents therein to consider her representations for compassionate appointment in view of death of her second husband. She cannot claim benefits from two husbands. Therefore, the present appeal is liable to the allowed.
Per contra, learned counsel for the respondent - wife supported the judgment and decree passed by the Court below and contended that the order passed in the criminal case has no bearing to the facts of the case on hand.
Heard the learned counsel for the parties and perused the material available on record including the impugned judgment.
It is not in dispute that the marriage between the parties took place on 16-11-1995 as per Mehdvi Sect of Muslim free from the evils of dowry and jahez and the mahr fixed was 11 tulas of pure gold. It is the case of the appellant that he has not taken any dowry or jahez nor demanded for additional dowry but has given 12 tulas of gold jewellery to the respondent at the time of marriage which is covered by videography, whereas it is contended by the respondent that though the appellant belongs to Mehdvi Sect, he demanded and collected Rs.60,000/- in cash and gold jewellery, silver ornaments, cot etc., approximately worth Rs.75,000/- from her parents in the form of Jodah and jahez articles and instead of giving 11 tulas of gold towards mahr, he had offered only a small gold necklace and a set of earrings weighing only two tulas and, therefore, he is not entitled to plead the sanctity of Mehdvi Sect. It is also her case that after she went to her marital house, her hopes were mused for no care, love and affection from the appellant and his family members and that they demanded additional dowry of Rs.3,00,000/-. The brother's wife of the appellant was also meted with the same treatment and relieved of her matrimonial bonds by taking Qula. The appellant has illicit intimacy with the wife of another brother by name Sofia and that due to the behaviour of the appellant and other family members she experienced hell in her conjugal life. It is only because she expressed her inability to secure the additional dowry demanded by them, she was ill treated and that bad propaganda was also made about the character of her sisters. It is the appellant who left her at her parents house on 21-01- 1996 with a promise to take her back at that evening but failed to come and that in the complaint filed by her under Section 498-A IPC, the appellant before the police admitted to give divorce to her within three days and now instead of giving divorce filed O.S No. 132 of 1996 for restitution of conjugal rights to avoid return of dowry amount and also mahr. The appellant contended that he belongs to highly respectable, religious and pious family of Mehdvi sect in which the marriages are free from the evils of dowry or jahez and that himself and his family members never demanded nor taken any dowry or cash of Rs.60,000/- towards Jodah Godah or jahez articles as claimed by the respondent. He also denied the allegation of additional dowry and stated that they had given 12 tulas of gold jewellery to the respondent at the time of marriage towards mahr though 11 tulas was agreed to be given. The appellant also denied the other allegations and contended that the suit is not maintainable in view of Section 3 of the of the Muslim Women (Protection of rights on divorce) Act, 1986.
Regarding the contention of the appellant that the suit is not maintainable insofar as the claim of the respondent for maintenance, recovery of mahr amount or return of jahez articles and Jodah Godah amount in view of Section 3 of the Muslim Women (Protection of rights on divorce) Act, 1986, as rightly held by the trial Court the said Act is applicable only in case of divorced women and in the case on hand, the respondent filed the suit before divorce was granted to her.
Insofar as the mahr of 11 tulas of gold is concerned, it is the case of the appellant that at the time of marriage he had given 12 tulas of gold jewellery towards mahr and the same is covered by videography, whereas the respondent stated that the appellant had given only a small gold necklace and a set of earrings weighing only two tulas. Even though the appellant had contended that giving of agreed mahr to the respondent is covered by videography, the same has not been filed in the trial Court. Therefore, the trial Court was right in holding that the appellant is still in due to give the respondent nine tulas of gold towards mahr.
Regarding jahez articles, it was the case of the appellant that Ex.A-1 is a fabricated one. In view of the fact that Ex.A-1 is on the letter head belonging to the school of DW2 and in view of the fact that it was not the case of the appellant that PW 1 got the letter head of DW2's school for preparing the list of jahez articles, it cannot be said that Ex.A-1 is a fabricated one. Further, the appellant in the suit filed by him stated that the respondent while leaving the matrimonial house took costly clothes and gold ornaments etc., all jahez articles along with her on the pretext that they belong to her. Whereas in the suit filed by the respondent, he stated that the marriage is free from the evils of dowry and jahez. Therefore, the trial Court rightly disbelieving the case of the appellant considered Ex.A.-1. However, while considering the same, it excluded some receipts (Exs.A-2 to 10) in which there was no mention about the names of the persons who purchased or who sold the same. Ex.A-11 receipt dated 18-05-1995 showing purchase of 49.700 grams of gold set with bracelet for Rs.22,800/- in the name of the respondent was also rightly not taken into consideration since the transaction was about 1 1/2 years before the date of marriage. The trial Court considering Exs.A-11 to A-22 which correlate to many of the items mentioned in Ex.A-1 list of jahez articles and since the dates on those receipts were nearer to the date of marriage, adopting guess work granted an amount of Rs.25,000/- for the jahez articles, which in our considered view, is reasonable.
Insofar as the contention of the appellant that the decree of trial Court granting divorce on the ground of cruelty is liable to be set aside in view of his acquittal in criminal case is concerned, it is to be noted that the proceedings before the civil Court and the criminal Court are independent of each other and the level of proof in both the proceedings is different. Even the purpose for which the proceedings are initiated is also different. The proceedings in a criminal case and in a divorce petition operate in distinct and different jurisdictional areas. While in a divorce petition, the standard of proof is one of preponderance of the probabilities, in a criminal case, the charge has to be proved by the prosecution beyond reasonable doubts. Therefore, this contention of the learned counsel for the appellant is rejected.
The trial Court granted an amount of Rs.25,000/- to the respondent towards maintenance from 21-01-1996 till the date of judgment and for whole life. Even though the respondent had married another person, in view of the judgment of the Supreme Court in
[1]
Shabana Bano vs. Imran Khan , even a divorced wife is entitled to
maintenance as long as she does not remarry. Therefore, we hold that the amount of Rs.25,000/- awarded by the trial Court towards maintenance is confirmed and the same shall be treated as an amount awarded to the respondent from 21-01-1996 till the date of her remarriage.
In view of the foregoing discussion, we hold that the appeal lacks merits and is liable to be dismissed.
The appeal is accordingly dismissed. Miscellaneous petitions, if any, pending consideration shall stand closed. No order as to costs.
ASHUTOSH MOHUNTA, J M. SATYANARAYANA MURTHY, J 24th January, 2014 ks
[1] (2010) 1 SCC 666