Madras High Court
A. Abida Banu vs A. Mohammed Sanalluah on 30 January, 2008
Author: S. Tamilvanan
Bench: S. Tamilvanan
JUDGMENT S. Tamilvanan, J.
1. This appeal has been preferred against the judgment and decree, dated 29.09.1995, made in O.S. No. 9 of 1993 on the file of the Subordinate Judge, Ranipet, North Arcot District.
2. The appellant herein was the plaintiff in the suit, before the Trial Court. It is an admitted fact that the respondent herein had married the appellant, on 10.03.1991 at Rasheedpet, Mosque, Melvisharam, Arcot Taluk, North Arcot District. On the date of marriage (Nikka) a sum of Rs. 5,000/- was fixed as prompt dower, payable to the appellant. According to the appellant/plaintiff, at the time of marriage gold ornaments viz., Har, Necklace, Bangles and other items weighing 248 gms, silver ornaments weighing 170 grams, Jehez items viz., furniture, suit case, clothes and other articles, (sic) were presented to the appellant and Salami for a sum of Rs. 600/- was given to the respondent by the appellant and the details about the same were given, in schedule 'C' to 'H', appended to the plaint. It has been admitted that subsequent to the marriage, they lived separately for a few months at Poonamallee and thereafter the respondent pronounced 'Talak'.
3. According to the appellant, the respondent had started ill-treating the appellant on account of her inability to get dowry to the tune of Rs. 50,000/-. In the third week of August 1992, the respondent caused a mental and physical cruelty on the appellant by severely beating the appellant and also left her at Melvisharam and instructed her to return to Poonamaliee only with the dowry amount. Subsequently, the respondent pronounced 'Talak'. But he has not paid the prompt dower amount of Rs. 5,000/-and the articles described in schedule 'C' to 'H' belongs to the appellant worth about Rs. 1,38,059/-, left in his house. Based on the above pleadings, the appellant filed a suit as an indigent person directing the respondent to pay the prompt dower amount of Rs. 5,000/- and to return the articles described in schedule 'C' to 'H' or the value of the same and for consequential other reliefs.
4. The respondent in his written statement has disputed the properties described in schedule 'C' to 'H' appended to the plaint as incorrect and false. However, the respondent in his written statement has stated the list of jewels and other articles by way of schedule of properties. On the side of the appellant, she examined herself as P.W. 1 apart from examining P.Ws. 2 & 3 and marking Exs. A1 to A16. The respondent has examined himself, as D.W. 1 apart from two other-witnesses. On the side of the respondent, the certificate issued on 10.09.1992 by Valazapath Sunnath Jamath Mazjeed has been marked as Ex. B1. Considering the oral and documentary evidence, the Trial Court partly decreed the suit, whereby directing the respondent to pay the (dower) Mahar amount of Rs. 5,000/- with 6% interest from the date of filing of the suit and also to return the second item of the 'C' schedule property, 32gms of gold neckles and the suit was dismissed, in respect of other items of the properties described in schedule 'C' to 'H' of the plaint. Aggrieved by which the appellant/plaintiff, has preferred this appeal.
5. The point for determination in this appeal is:
Whether the appeal has to be allowed on the ground that the plaintiff is entitled to the entire relief as prayed for in the plaint?
6. Mr. H.M. Abulkalam, learned Counsel appearing for the appellant submitted that though the respondent as defendant had admitted certain items of the properties entrusted to him by the appellant during her marriage and the same were not returned to her, the Trial Court without considering the same, has erroneously dismissed the relief sought for. Learned Counsel further contend that as per the letter of the respondent dated 08.09.1992, the belongings of the appellant were admittedly with the respondent and that she was not in a position to go over and take them back. Further, the learned Counsel drew the attention of this Court to the evidence of the respondent, who was examined as D.W. 1, wherein he has admitted that the belonging of the appellant were kept in an Almerah, under lock and key in his house and that the same were not taken back by the appellant. According to the learned-counsel appearing for the appellant, based, on the admission made by the respondent before the Trial Court, the court have (sic) directed the respondent to return the jewels, silver and other articles, belonged to the appellant.
7. It has been admitted by the respondent that the Mahar fixed during the marriage between the appellant and the respondent was Rs. 5,000/-. The respondent, as D.W. 1 has deposed that the said amount was paid to the appellant by his father, who was examined as D.W. 2, but, for the alleged payment of Mahar amount, admittedly there is no receipt or other documentary evidence, on the side of the respondent. D.W. 2, father of the respondent in his cross examination has not specifically stated anything about the handing over of the money by him. On the other hand, without specifying the date and time, D.W. 2 has said that the amount was paid by them without any proof. Therefore, the Trial Court has held that the Mahar (Dower) payable to the appellant was due and accordingly directed the respondent, to pay the said amount with 6% interest from the date of filing of the suit. Therefore, so far as the Mahar (Dower) amount is concerned the finding of the Trial Court becomes final. Similarly the Trial Court has held that the respondent had to return gold neckless, weighing 32 grams, against which there is no cross appeal by the respondent.
8. As contended by the learned Counsel for the appellant the respondent as D.W. 1 has admitted in his evidence that apart from the gold necklace, two gold rigs, one pair of anklet, silver pot, silver kettle, two steel rods, two small plates and other articles were given as gift by her parents, during her marriage. D.Ws. 1 and 2 have further admitted that the gift articles and gold jewels were kept in their house, while the appellant left the house. Admittedly, the respondent got married with another woman. Further, the gold jewels arid other house hold articles, Sarees and other dressing materials were not returned to the appellant, even after the respondent pronouncing triple Talak on the appellant. The respondent has admitted in his evidence, that he had sent a letter promising the appellant to hand over jewels and other house hold articles and personal belongings of the appellant, but, in spite of the suit filed by the appellant, the respondent had not returned those properties to the appellant. The appellant has given the details about the said properties with the value of the same. On the facts and circumstances, it can be legally presumed that the appellant could not go over to the house of the respondent and collect all her properties which were kept in the matrimonial home with the respondent, since he had pronounced 'Talak' and also married another lady. From the evidence of D.W. 1 and 2 it is clear that the respondent has given details about 15 items of jewels, house hold articles and other personal belongings of the appellant. Had the bureau been under lock and key, it could not have been possible for the respondent to give details about the personal belongings, such as sarees, pettycoats, burkah etc. The admission made by the respondent and his father would clearly establish that the appellant has given only correct particulars about her belongings and the value given for the same in the plaint is also acceptable.
9. Under such circumstances, to meet the ends of justice, this Court is of the view that the Trial Court could have directed the respondent to return the properties belonged to the appellant from the custody of the respondent or to pay the amount for the value. Learned Counsel appearing for the appellant would contend that after the marriage between the appellant and the respondent that had? taken place on 10.03.1991, more than 16 years have lapsed and the appellant being a divorced women has been in precarious position, even she could not get back her own personal properties from the respondent.
10. Though, the respondent has admitted in the written statement about 15 items of personal properties belonged to the appellant, he has not returned the same, which cannot be justified. Ex. A2 is the letter of the respondent dated 08.09.1992, sent to the appellant wherein the respondent has clearly stated that he did not want her also to come to his house, since he did not like her any more and asked the appellant to take back her properties from his house. At the back of the letter, he informed the appellant that he had pronounced triple 'Talak'. Subsequently, under Ex. A3 dated 18.10.1992, the appellant sent her legal notice through her counsel and also given him the details about her jewels and other properties with him and asked him to return her jewels and other personal properties. Having admitted only 15 items of the properties in the written statement, at least the same could have been returned to the appellant by the respondent, since he had pronounced "Talak" as per Ex. A2 dated 08.09.1972.
11. The learned Counsel for the appellant, relying on the decision of the Hon'ble Apex Court in Iqbal Banu v. State of U.P. , submitted that as per Section 125 of the Code of Criminal Procedure, even a divorced muslim woman is entitled' to claim maintenance, however, the appellant has not filed any petition seeking maintenance, but filed the suit only for return of her personal properties or the amount for the value of the properties.
12. Therefore, considering the facts and circumstances and the evidence available on record, the Trial Court could have decreed the suit as prayed for with costs. Hence, I am of the view to decide the point for determination in this appeal, in favour of the appellant and against the respondent.
13. The oral and documentary evidence adduced by both sides is sufficient to establish that the appellant is entitled to get a decree as prayed for in the suit. In the result, the appeal is allowed and the same is decreed as prayed for. The respondent is directed to pay Rs. 1,38,059/-to the appellant herein apart from the Mahar amount of Rs. 5,000/- payable to the appellant with 6% interest from the date of filing of the suit and costs throughout. The Court fee payable to the Government shall also be paid by the respondent.