Delhi District Court
Karkardooma Courts vs Mohd. Zakir on 7 May, 2008
IN THE COURT OF SH. M. P. SINGH, CIVIL JUDGE,
KARKARDOOMA COURTS, DELHI
Suit No 93/05
SAIRA BANO
D/O MOHD. ISLAM
W/O MOHD. ZAKIR
R/O H. NO J-410, JANTA COLONY
WELCOME, SEELAMPUR,
DELHI-53 ........PETITIONER
Versus
MOHD. ZAKIR
S/O MOHD. ISRAYEEL
C/O NATHU LAL NEAR SARVAN STD CENTRE BOOTH
MOHALLA JUNDA HERA, NEAR KAPASHERA BORDER
GURGAON (HARYANA)
.......RESPONDENT
PETITION FOR DISSOLUTION OF MARRIAGE
DATE OF INSTITUTION: 09/08/2005
DATE WHEN JUDGMENT WAS RESERVED: 21/04/2008
DATE OF DECISION: 07/05/2008
JUDGMENT
1. This is a petition for dissolution of marriage under Section 2 (ii), (iv) and viii (a) of The Dissolution of Muslim Marriages Act, 1939 filed by the petitioner-wife against her husband. There was love marriage between the parties. Their marriage was solemnized on 15/07/1999 in accordance with Islamic Shariat. Mehar amount was fixed at Rs. 15,000/-. Marriage was consummated and one female child was born out of the wedlock on 29/03/2000, whose custody is with the petitioner.
2. After one year of the marriage, the relationship between the parties turned sour as the respondent allegedly started harassing and humiliating the petitioner at the instance of his family members. The respondent changed his address from Madhipur to Khanpur village and stayed there for one and a half years. Thereafter the respondent shifted to Mohalla Dunda Hera, Gurgaon (Haryana). It is from this place that the petitioner left the matrimonial company of the respondent being unable to bear the alleged torture being inflicted upon her. It is the allegation that the respondent was in the habit of abusing the petitioner in a filthy language and also inflicted physical and mental torture too during their stay at Khanpur Village. It is further the allegation that the respondent has failed to provide the basic amenities of married life and has failed to discharge his marital/matrimonial obligations.
3. The petitioner with a view to save her married life tolerated the torture. It is also alleged that the respondent always suspected that the petitioner was into illicit relationship. In 2003 the respondent took the petitioner to his native place in Bihar where the family members of the respondent gave a lukewarm welcome in order to show repugnance and abhorrence. It is further the allegation that the petitioner was denied proper food and clothing. Petitioner left the company of the respondent without informing him on 10.06.2004. At present, petitioner is stated to be residing at H No J-410, Janta Colony, Welcome, Seelampur, Delhi-110053 and earning her livelihood by working as maid servant in the locality.
4. Respondent contested the suit by filing his written statement dated 22.11.2005. The respondent took preliminary objections that the petitioner has not come with clean hands; that there is no cause of action as the petitioner herself ran away from the matrimonial home without any sufficient reason and without his consent; that the present petition has been filed just to harass and humiliate him. In the reply on merits, the respondent has denied all the allegations of torture, cruelty etc. of the petitioner. It is averred by him that he always extended love and affection towards the petitioner and it was the petitioner herself who never cared for her married life. The respondent states that he never suspected the fidelity of his wife. It is being denied that the petitioner was not provided proper food and clothing. It is stated that the respondent always wanted to meet his daughter, but the petitioner does not let him to do so. Denying the rest of the averments of the petitioner, the respondent has prayed for dismissal of the petition.
5. The petitioner has refuted the counter allegations as contained in the written statement of the respondent and has reiterated and re-affirmed her contentions as enshrined in the plaint by filing her replication dated 10.01.2006 to the written statement of respondent.
6. On the basis of the pleadings of the parties, the following issues were framed on 08.04.2006:
1. Whether the plaintiff is entitled for the relief of Dissolution of Marriage by the decree of Divorce? (OPP)
2. Relief.
7. There were 4 witnesses in all. The petitioner deposed as PW1. There were no other witnesses on behalf of the petitioner. On behalf of the respondent there were three witnesses. The respondent got himself examined as DW1. One Sh. Sirajul was examined as DW2. One Sh. Mohd. Zahir, the younger brother of respondent was examined as DW3.
8. My findings on the issues are as follows:
9. Issue no. 1: The onus to prove this issue was upon the petitioner. The petitioner has instituted the present petition for dissolution of her marriage with the respondent under section 2 (ii), (iv) and viii (a) of the Dissolution of Muslim Marriage Act, 1939. First I would take up the case of the petitioner under section 2 (iv) of the Act. Section 2 (iv) of the Act entitles a married Muslim woman to obtain a decree of divorce on the ground that her husband has failed to perform, without reasonable cause, his marital obligations for a period of three years. Under this provision, where the respondent-husband cannot show to the satisfaction of the Court, the reasonable cause for his failure to perform the marital obligations for a period of three years, the petitioner-wife is entitled for a decree of dissolution of marriage.
10.The present case concerns a couple who got married out of their own voluntary choice. They underwent a 'love marriage'. But post-marriage things moved drastically in such a direction that their mutual love and affection did not last long and it did not take long for their relationship and the matrimonial bliss to turn sour and for the petitioner not to live with the respondent. The petitioner alleges cruelty and failure on the part of the respondent to perform his marital obligations. While the respondent-husband disputes this and avers that he is ready to keep the petitioner and the baby Afsana with him. In order to arrive at any finding, the evidence of both the sides is required to be weighed. In the case at hand, it is not disputed that the petitioner left the matrimonial company of the respondent on 10.06.2004. However, till date the respondent has not made any efforts to bring back his wife. He has not instituted any petition for restitution of conjugal rights. This fact is substantiated by the statement of the respondent in his cross-examination dated 17.01.2007, wherein he has testified as follows: "it is correct that I have not filed any case for restitution of congunal rights or any case for the custody of my child Afsana before or after filing the present suit." He has further testified "it is correct that I never called the respective parents to reconcile the dispute between the parties. It is correct that the mehar amount of Rs 15,000/- has not been paid by me inspite of repeated requests and application moved before this court." The petitioner in her evidence has specifically alleged that in spite of specific demands for mehar the respondent has not paid the mehar amount as required under the Mohammedan Law. Under the Mohammedan Law the amount of mehar is split in two parts, one called, "prompt" which is payable on demand and the other called, "deferred" which is payable on dissolution of marriage by Act of God or divorce. It is also well settled law that where the parties are governed by the Shia Law the rule is to regard the whole as prompt. But according to the Sunni Law the amount of prompt dower is regulated by the custom in the absence of any specific contract between the parties. And in the absence of any custom, the presumption is that the prompt mehar and the deferred mehar are half and half. {Nasiruddin Shah Vs Mt. Amatul Mughni Begum (1948) Lahore 135 (FB)}. I have been able to locate few other cases in this connection. In the matter of Taufik-un-nissa vs. Ghulam Kambar (1877)1 All. 560 the Court held that a third of the dower of Rs. 51,000/- was reasonable as "prompt"; and the same proportion was fixed in Fatma Bibi vs. Sadruddin (1865)2 Bom.
291. In all these cases the parties were Sunnis and the marriage contract was silent as to whether the dower was to be prompt or deferred.
11.Thus from the legal position as stated hereinabove what is clear is that a husband is bound to pay a portion of the dower amount as 'prompt' dower, even if the same be not half the dower amount. In other words, at least the husband is required to pay some reasonable portion of the dower amount as prompt dower. Indisputably, the respondent-husband has despite repeated demands by the petitioner-wife not paid even a single penny towards prompt dower; which is legally speaking the matrimonial obligation enjoined upon a Muslim husband under the Mohammedan Law. A Muslim husband cannot escape from this matrimonial obligation. To provide for maintenance of the wife by the husband is enjoined by the Muslim Law, but to pay prompt dower on demand is all the more enjoined by that law, the same being an essential element of Muslim marriages. The marriage between the parties was contracted way back on 15.07.1999. The petitioner wife parted with the matrimonial company of the respondent husband on 10.06.2004. Thus, irrefutably in the case at hand the respondent husband has not paid even a single penny towards prompt dower in spite of the petitioner wife living with him for nearly five years continuously. The respondent-husband neither in his evidence nor in his entire pleadings has shown or proved the existence of any reasonable cause for his failure to pay any prompt dower which is a matrimonial obligation legally enjoined upon a Muslim husband. And certainly there cannot be any reason for the Muslim husband not to discharge this matrimonial duty. It has been held that wife would be entitled to a dissolution of the marriage if she stays away from her husband's house for non-payment of her prompt dower. If, therefore, the husband fails to maintain the wife without good reason the case would be covered by the Act. {Dastgir Sab vs. Sharifunnissa AIR 1953 Mysore 145; Najimunnisa vs. Serajuddin AIR 1946 Pat. 467}
12. Therefore what is abundantly clear is that the petitioner has made out her case under section 2 (iv) of The Dissolution of Muslim Marriages Act 1939.
13.The Ld. Counsel for the petitioner during the course of arguments drew my attention to the statement of the respondent in his cross- examination wherein he conceded that he did not file any petition for restitution of conjugal rights and that he never called the respective parents to reconcile the disputes between the parties. DW2 and DW3 in their evidence have also stated that no reconciliation efforts were made by the respondent. The Ld. Counsel for the petitioner contended that the fact that the respondent did not take any action for institution of the petition for restitution of conjugal rights reflects that he failed to perform his marital obligations; thus giving an additional ground to bring the present case under Section 2 (iv) of the Act. The petitioner left the company of the respondent on 10.06.2004. The present petition has been filed on 09.08.2005. Therefore, non-institution of the petition of restitution of conjugal rights cannot, in any event, be considered to be failure to discharge marital obligations inasmuch as Section 2 (iv) of the Act requires that such failure must be for a period of three years. Cause of action has to be looked into from the point of view of the date of the institution of the petition. {Mohanakumaran Nair vs. Vijayakumaran Nair AIR 2008 SC 213}. The fact that another three years have already elapsed during the pendency of the petition would not and cannot be considered and taken into account in construing "three years" as occurring in Section 2 (iv) of the Act. "Three years"
has to be period prior to the institution of the petition. Thus in my view, due to the aforesaid reason, the action of the respondent in not filing petition for restitution of conjugal rights, per se, does not bring out case for the petitioner under Section 2 (iv) of the Act.
14.Now I proceed to consider the case of the petitioner under Section 2
(viii) (a) of the Act. This provision entitles a married Muslim woman to obtain a decree of divorce on the ground that her husband has treated her with cruelty by habitually assaulting her or making her life miserable by cruelty of conduct even if such conduct does not amount to physical ill treatment. As per this provision, in order that actions of the husband constitute cruelty, it is not necessary that the same are physical in nature. In the case at hand, it is not in dispute that the husband did not make any conciliatory efforts to bring his wife back. He neither made any efforts to approach the respective parents to bring about a reconciliation. Where one's spouse is aggrieved, one would, in the natural course of events, be certainly expected to take steps to assuage or placate the grievances of his/her spouse. And the failure to do so would of course bring about a feeling of being neglected in the mind of the aggrieved spouse. The husband in the case at hand, left the petitioner-wife to fend for herself. During all those five years that she lived with her husband; the husband did not provide any dower in spite of her repeated demands. The husband was at least bound to pay to his wife a reasonable sum as prompt dower on demand as the same is an obligation enjoined upon her by the Mohammedan Law.
15.The petitioner has stated in her cross-examination that there is an apprehension of danger to her life if she would have to live with her husband after the disputes are reconciled. The parties underwent a "love marriage". But now things have come to such a pass that the petitioner entertains apprehensions of danger to her life. Of course, there must have been something that has compelled the petitioner to part ways with the very same person; whom not long ago she had married out of her own volition and desires. Taking into account the facts and circumstances of this case, I am inclined to believe the testimony of the petitioner in this regard that she was treated with cruelty, at least mentally, by the respondent. It is a common knowledge that in the Indian society, a female in order to save her marriage, prefers to keep silent over her sufferings in the matrimonial home. This is because of the fact she expects that sooner or later the differences and the problems would be reconciled and her matrimonial life would not be in a jeopardy. Therefore, the fact that she did not lodge any complaint should not mean that there were no compelling circumstances for her to part company with the respondent.
16.During the course of arguments, it was contended by the Ld. Counsel for the respondent that respondent is ready and willing to provide maintenance to his wife and also ready to take her back into his company. However, the conduct of the respondent seems to be diametrically opposite and the same is not matched by his words. Such arguments are not matched by any sincerity of action on the part of the respondent. Perusal of the file reveals that during the proceedings of this case, the petitioner had filed an application for interim maintenance. However the respondent had vehemently opposed the same on various grounds. The application for interim maintenance came to be dismissed. Therefore, to oppose the grant of interim maintenance at one stage of the proceedings and then to turn around and say that the respondent is willing to provide the maintenance is indeed perplexing. Such conduct on the part of the respondent is not at all warranted and leaves the Court in doubt as regards his true intentions.
17.It has been the allegation of the petitioner throughout the proceedings of this case that the respondent had always suspected her fidelity and had always accused her of illicit relationships with some other people. The respondent has denied this. However such denials of the respondent stand to be disbelieved and refuted by the fact that he has not refrained from levelling such allegations in this case as well. At page No 3 of Para 5 of the respondent's reply to the petitioner's application under section 151 of CPC for grant of interim maintenance for payment of dower the respondent had specifically alleged that she is into illicit relationships with some other people. Thus I am not inclined to believe the testimony of the respondent in this regard. When the respondent can make such allegations before a court of law then there must have been all the more reasons for him to level such allegations privately to his wife. In the case reported as Kalim Uz Zafar Shaikh Hasan Vs Mrs. Razia Kalim Shaika I (2001) DMC 420 (DB) it has been held by the Bombay High Court even a single incident of cruelty on the part of respondent husband would be sufficient to claim the case within the ambit of section 2 (ii) of the Act.
18. Thus, in the light of the foregoing discussion, in my view, the petitioner has made out her case under section 2 (viii) (a) of The Dissolution of Muslim Marriages Act, 1939 also.
19.Now I proceed to consider the case of the petitioner under Section 2
(ii) of the Act. This provision entitles a married Muslim woman to obtain a decree of divorce on the ground that her husband has neglected or has failed to provide for her maintenance for a period of two years. This divorce petition has been filed on 09.08.2005. Therefore what petitioner is required to prove is that she was not being maintained by her husband since at least two years prior to the filing of the present divorce petition. The petitioner left the matrimonial company of her husband on 10.06.2004. The main thrust of the arguments of the Ld. Counsel for the respondent was that inasmuch as the petitioner was not residing with her husband the question of providing maintenance does not arise at all. It was his contention that a husband can provide maintenance to his wife only if and if the wife is living with her husband. In support of his arguments he has relied upon the judgments which have been reported as Mst. Mabiya Khatoon Bibi Vs. Shaikh Anwar Ali AIR 1971 Calcutta 218; Smt. Rabia Khatun Vs. Mohd Mukhtar Ahmad AIR 1966 Allahbad 548; Jamila Khatun Vs. Kasim Ali Abbas Ali AIR (38) 1951 Nagpur 375. Relying upon these judgments he forcefully contented that maintenance as contemplated under section 2 (ii) of the Act does not imply providing maintenance to the wife where the wife is voluntarily staying away from her husband's house.
20.On the other hand Ld. Counsel for the petitioner argued that Muslim husband's failure to provide for maintenance to his wife as mentioned in section 2 (ii) of the Act entitles the wife to a decree of dissolution of marriage whether or not the husband had reasonable cause for withholding such maintenance. In support of his contention Ld. Counsel for the petitioner relied upon the judgment reported as Ittoochalil Meethal Moossa Vs. Pachiparambath Meehal Fathimas AIR 1983 Kerala 283.
21.Insofar as the interpretation of section 2 (ii) is concerned, the different High Courts have expressed divergent views. While some High Courts have taken the position that the words "without reasonable cause"
must be taken to be implicit in Section 2 (ii) and as a consequence a husband cannot be compelled, rather expected to provide maintenance to his wife if she stays away from her husband or she leads an immoral life. On the other hand, there are a number of judgments which have taken a contrary position. These judgments hold that section 2 (ii) of the Act, a wife, is entitled to maintenance even she had contributed to non maintenance. Wife is entitled to divorce whether or not husband had reasonable cause for withholding such maintenance. Some of these judgments which take this position are AIR 2003 Karnataka 373; AIR 2002 Kearala 370.
22.Thus as regards the very interpretation of section 2 (ii) of the Act there appears to be divergence of the judicial opinion amongst the different High Courts. But inspite of this divergence it is well settled that so long as the wife is in the matrimonial company of her husband she is bound to be maintained by him. Half hearted and illusory attempts to provide maintenance is not maintenance contemplated by the Act. Failure to maintain the wife need not be willful. Even if the failure to provide for her maintenance is due to poverty, failing of health, loss of work or any other cause the wife would be entitled to divorce. Mere inability of the husband to maintain his wife is no longer good ground for refusing a divorce.
23.Before proceeding further I wish to state that the nature and the requirement of proof as required under the civil law is different from that under the criminal law. Under the criminal law the prosecution is required to prove its case beyond reasonable doubt; whereas in civil matters the petitioner/plaintiff is required to prove its case on the basis of proponderance of probabilities. That is the probability which is most preponderant would be considered and taken into account by the court.
24.In the case at hand it was the petitioner's stand that she was not being maintained by her husband. It was her averment that she was denied proper food and clothings by her husband. It was also averred that the articles of daily need and requirement were not being provided. On the other hand the respondent refuted these averments of the petitioner. It was his submission that he maintained his wife well. In the facts and circumstances as appearing in this case I am not inclined to believe the testimony of the respondent in this regard. During the proceedings in this case, when the respondent was called upon to pay the interim maintenance during the pendency of this case he had vehemently opposed the same. Therefore in my view when the respondent opposes the grant of interim maintenance before the court by filing his reply accompanied with an affidavit; there must have been all the more reason for the respondent to deny the same privately at his matrimonial house.
25.I am fortified in this view that I have taken in the background of the fact that in the present matter the respondent by his own testimony has not paid even a single penny towards the prompt dower despite the persistent demands from the petitioner. When the respondent has neglected to pay the prompt dower and thereby failed to discharge his matrimonial obligations as enjoined upon him under the Muslim Law; I can scarcely believe that he took all the steps that he could to maintain his wife as per his standards. The fact that the respondent has not even cared to make any efforts towards reconciliation also goes against him and in such background it is difficult for this court to rely upon the respondent's version that he had never neglected his wife. Further the fact that the wife who had voluntarily contracted the marriage with the respondent, found herself in a situation where one fine day she had to leave the company of the very same person with whom she had contracted the marriage out of her own free will, is a factor which cannot be simply wished away lightly. Therefore in my view in the light of the facts and circumstances of the case and the comparative reading of the testimonies of the respective parties I am of the view that the petitioner has on the basis of preponderance of probabilities made out her case under section 2 (ii) of the Act by showing that the respondent husband had neglected her for a period of two years prior to the date of her parting company with the respondent.
26.Even otherwise, in the context of Muslim marriages the weight of the judicial opinion is veering around to recognising irretrievable breakdown of marriage as a ground for dissolution of marriage to be a ground for dissolution of marriage. In the case reported as Amna Khatoon vs. Md. Kashim Ansari AIR 2001 Jhar. 28 the marriage between the parties was dissolved by the Court on the ground of irretrievable breakdown of marriage. In this case the parties were found to be living apart for a year and a half since marriage and continuing so for more than six and a half years. The husband had levelled allegations of wife having extra marital allegations. It was in such circumstances that it was held by the Division Bench of the Jharkhand High Court that the such intolerable situation leads to the inference of irretrievable breakdown of marriage. Further in the case of Mohamed Usman vs. Sainaba Umma AIR 1988 Ker 138 the Kerala High Court too had recognized the irretrievable breakdown of marriage as a ground of dissolution of marriage.
27.From the facts and the circumstances of the case, the reasonable inference that can be drawn is that there is irretrievable breakdown of marriage. The spouses are living apart for nearly 4 years. There has no attempt whatsoever at any reconciliation between the parties. The wife is apprehensive of safety to her life in case she would have to live with her husband. The wife seems to have already made peace with her new surroundings. The husband in his reply to one of the applications of the petitioner had alleged that she was into illicit relationship. Therefore, in any event, situation is such that the reasonable inference that can be drawn is that there has been an irretrievable breakdown of marriage.
28.In the light of the aforesaid discussion, I answer this issue in favour of the petitioner and against the respondent. The petitioner is therefore entitled to a decree for dissolution of her marriage with the respondent.
29.Relief : In view of the aforesaid discussion, this petition of the petitioner for dissolution of marriage stands decreed. The marriage of the petitioner with the respondent is hereby ordered to be dissolved. The decree sheet be prepared. Parties are left to bear their own costs. File be consigned to the record room after due compliance.
ANNOUNCED IN THE OPEN COURT M.P.SINGH
ON 07th MAY, 2008 CIVIL JUDGE
KKD COURTS
DELHI.