Rajasthan High Court - Jodhpur
Sikander vs Shamim on 16 March, 2012
Author: Gopal Krishan Vyas
Bench: Gopal Krishan Vyas
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
:JUDGMENT:
Sikander Vs. Shamim
(S.B. Civil Second Appeal No.63/2012)
DATE OF JUDGMENT : March 16, 2012
PRESENT
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
_________________________________________
Mr. Sandeep Shah for the appellant.
BY THE COURT :
Instant second appeal has been filed by plaintiff- appellant Sikander against the judgment and decree dated 17.01.2012 passed by the Addl. District Judge, Churu in Civil Regular First Appeal No.19/2011 (Old No.07/2011), by which, the appellant's appeal was dismissed and judgment and decree dated 12.01.2011 passed by the Civil Judge (Jr. Dn.), Churu in Civil Original Cases No.36/2009 and No.46/2009 was upheld.
Brief facts of of the case are that respondents filed a suit for declaration and annulment of marriage before the Civil Judge (Jr. Dn.), Churu stating therein that she married 2 with the appellant in the year 1999 at Churu and, at that time, her age was 10 years and she never consummated the marriage and, thereafter, and upon attaining the age of 16 years, the respondent informed her mother and father verbally that she has never accepted appellant Sikander as her husband and she wants to repudiate the marriage. It is also stated that on attaining the age of 18 years, the respondent started understanding the implication of marriage and she sent a registered notice informing that she is repudiating the marriage with the appellant.
In the reply to the notice, the appellant informed the respondent that he shall initiate the proceedings for restitution of conjugal rights, therefore, the present suit was filed by the respondent with a prayer to pass decree for divorce.
In the suit filed by the respondent, the appellant filed his reply and averred that after marriage the respondent once came to his house and marriage was consummated between appellant and respondent after attaining the age of majority by both of them, therefore, after attaining the age of majority the respondent met him on many occasions and assured that she shall stay with him as his wife; but, inspite 3 of making all efforts to bring her home the members of the respondent's family assured the appellant that "gone" will be done soon. The appellant also filed suit for restitution of conjugal rights on 21.08.2009.
In the suit filed by the respondent, after framing issues, statements P.W.-1 Shamim and her mother P.W.-2 Hazra were recorded and, in the suit filed by the appellant, the appellant got himself examined as P.W.-1; and, thereafter, the learned trial Court decided both the suits jointly vide judgment and decree whereby the suit filed by the appellant for restitution of conjugal rights was dismissed but the suit filed by the respondent for divorce was decreed in her favour.
Against judgment dated 23.01.2011, an appeal was preferred before the Addl. District Judge, Churu and the learned appellate Court dismissed the appeal vide judgment dated 17.01.2012. Both the above judgments are under challenge in this appeal.
In this second appeal, learned counsel appearing for the appellant submits that the trial Court has committed a grave error while not giving finding in the suit issue-wise, so also, the trial Court failed to consider that the respondent 4 herself has stated in her cross-examination that prior to giving notice in the year 2009 she never sent any notice and, at the time of sending the notice, the age of the respondent was 20 years; therefore, on the basis of said position, the respondent herself was not entitled to exercise the option of puberty under Section 2 (VII) of the Dissolution of Muslim Marriage Act, 1939, in which, it is specifically provided that option of puberty is to be exercised and dissolution of marriage by a muslim woman is required to be done before attaining the age of 18 years. Therefore, in view of the above position, it is clear that the respondent was legally barred to exercise the option of puberty after attaining the age of 18 years which is not exercised by her till attaining the age of 20 years. Thus, as per law, the respondent was debarred to exercise the option of puberty but the learned Courts below did not consider this aspect of the matter in right perspective, therefore, both the judgments are required to be quashed.
Learned counsel for the appellants submits that the finding given by the trial Court for denial of decree for restitution of conjugal rights in favour of the appellant is not based upon sound appreciation of evidence, therefore, 5 substantial question of law is involved in this second appeal which requires consideration for adjudication. In support of his contentions, learned counsel for the appellant placed reliance on two judgments of this Court reported in 2006 WLC (Raj.) UC 450 and 2009 (1) DNJ (Raj.) 471.
After hearing learned counsel for the appellant, I have perused the judgments passed by both the Courts below.
It is true that issues were framed in both the suits filed by the appellant as well as respondent, for restitution of conjugal rights and for divorce respectively. Upon perusal of the judgment it is revealed that it is specifically observed by the trial Court while adjudicating the suits that issues No.1 and 2 of suit No.46/09 and issues No.1, 2 and 3 of suit No.36/09 are based upon same facts, therefore, while consolidating all the issues both the suits were decided by the trial Court. In my opinion, no illegality has been committed by the trial Court while deciding both the suits for which separate issues were framed because the facts of the case are same with regard to marriage and grounds taken by both appellant and respondent in their respective written statements, therefore, there is no substance in the argument advanced by learned counsel for 6 the appellant that there is illegality in not deciding both the suits while giving issue-wise finding. In this view of the matter, contention of learned counsel for the appellant is hereby rejected.
With regard to ground taken by the appellant that as per Section 2 (vii) of the Dissolution of Muslim Marriage Act, 1939 the respondent was required to exercise the option of puberty before attaining the age of 18 years. I have perused the finding given by the trial Court as well as appellate Court for the above ground. It is admitted position of the case that there is pleading in the suit filed by respondent Shamim that at the time of marriage in the year 1999 she was 10 years' old and not understanding the meaning of marriage.
It is also stated by her that she did not live as wife with the appellant and no consummation of marriage took place before 16 years of age and through her father and mother orally she informed the appellant that she is not accepting the appellant as her husband; now, she is major and understands the meaning of marriage but no information was received from the appellant, then, she gave registered notice on 20.05.2009, in which, a threat was 7 given by the appellant and he informed that he is going to file suit for restitution of conjugal rights and she cannot dissolve the marriage.
Both the Courts below while considering the pleadings gave finding that there is no strength in the argument of the appellant that the respondent did not exercise the option of puberty before attaining the age of 18 years; more so, the trial Court gave following finding while considering the above ground :
"इस पक र पकरण स.46/09 ससकन र बन म शम म म स य ससकन र न ह अपन पत म यह उल ख त ककय ह# कक पतत द न क& ओर स द न क 20.05.09 क( स य ह)आ न(द+स क( भज थ । जजसम यह अककत ककय गय थ कक "अब ब स ग ह(न क ब उस तनक ह क # दहक ज न क म यन2 क ब र म समझ आय ह# इसस ए ह अब आपक स थ सन 5 1999 म ह)ए तनक ह क( स क र नह करत ह#" और ससकन र क पत म यह कह भ अककत नह ह# कक शम म क ब स ग ह(न क पश त 5 8न( पतत-पस9 न अपन # दहक ज न म पतत-पस9 क& तरह ह2। स य ससकन र न अपन बय न2 म स क र ककय ह# कक मर सम म क ब च कभ श र ररक सबध सथ पपत नह ह)ए ह> और श मतत शम म क बय न2 स भ इनह तथय2 क& त ई ह(त ह# और यह स कBत जसथतत ह# कक शम म न ससकन र क( न(द+स कर उपन न ब स ग जसथतत म ह)ए प ह क( शम म न 16 रD क& आयE स पE D ह सम प कर स य ह# ज( कक स य ससकन र क बय न2 स भ सपष ह(त ह# । ससकन र क अधध क न ए.आई.आर. {32} 1945 ह8र 56 पश ककय , ककन पकरण क तथय2 ए पररजसथततय2 पर यह चसप नह ह(त ह# जह J तक ससकन र द र पसत)त मपतय ज न क& प)नस D थ पन क पश ह# । उक भ उक पररजसथततय2 म डPक& ककए ज न य(गय नह रह ज त ह#, 8 कय2कक स य ससकन र न ह इन तथय2 क( स क र ककय ह# कक शम म न अपन न ब स ग जसथतत म ह)ए प ह क( खय र उ ब) )ग क समय जररए न(द+स अस क र कर द य ह# जबकक उनक( प ह पEणत D क( प प नह ह)आ थ ।"
The above finding of fact has been upheld in appeal by the first appellate Court below. On the basis of the above factual aspect of the matter, the impugned judgments passed by the Courts below are in tune with the judgments cited by learned counsel for the appellants, reported in 2006 WLC (Raj.) UC 450 and 2009 (1) DNJ (Raj.) 471 because, on factual aspect of the case it cannot be said that before attaining the age of 18 years the respondent did not exercise the option of puberty. In this view of the matter, no substantial question of law emerges in this second appeal for consideration.
Accordingly, this second appeal is hereby dismissed.
(Gopal Krishan Vyas) J.
Ojha, a.