Delhi District Court
Sh. Mohd. Ahmad Khan vs Smt. Rukhsana @ Maya on 28 February, 2012
IN THE COURT OF SH. VIJAY SHANKAR, ADMINISTRATIVE CIVIL JUDGE-
CUM-ADDITIONAL RENT CONTROLLER (NORTH-EAST),
KARKARDOOMA COURTS, DELHI.
SUIT NO.:- 88/06
UNIQUE CASE ID NO.: 02402C0034602006
IN THE MATTER OF :-
Sh. Mohd. Ahmad Khan
S/o Sh. S.S. Khan,
C/o Aia Hardware Store,
Near Idgah Market, Shah Jamal,
Aligarh, (U.P.) ....Plaintiff
VERSUS
Smt. Rukhsana @ Maya
D/o Sh. Gafoor Khan,
R/o Village Tamkoli,
Post Gabana, Aligarh, U.P.
Present Address :- C-4/14,
Block - C, Gali No.4,
Kabir Nagar, Delhi - 110094. ....Defendant
SUIT FOR DECLARATION OF DIVORCE UNDER MUSLIM LAW
Date of Institution of the Suit : 17/01/2006
Date on which Judgment was reserved : 16/02/2012
Date of Judgment : 28/02//2012
JUDGMENT :-
1. By way of present judgment, this court shall conscientiously adjudicate upon suit for declaration of divorce under muslim law filed by the plaintiff against the defendant.
By way of present suit, the plaintiff has prayed for decree of Suit No.88/06 Page 1 of 9 declaration of divorce under muslim law in his favour and against the defendant thereby declaring that there is valid talaq / divorce under the Muslim Law between the plaintiff and defendant and there is no husband and wife relation in existence between the parties to the suit from the date of pronouncement of triple Talaq in accordance with the Muslim Law on 10/06/1998 and the defendant has no rights to claim the plaintiff as her husband before relatives, society and in court proceedings because no rights, duties or liability exist as husband and wife between the parties.
2. Brief facts necessary for just adjudication of the present suit as stated in the plaint are that the plaintiff was married to the defendant on 11/11/1994 according to Muslim rites and ceremonies at Village - Tamkoli, Post
- Gabana, District - Aligarh, U. P. After the marriage, both the parties to the suit resided at Aligarh as husband and wife and out of this wedlock, one male child namely Hadis Ahmad @ Sonu was born on 01/09/1996, who is in the custody of the plaintiff since 10/06/1997 as the defendant deserted both the plaintiff as well as her child since then. Since very beginning, the attitude of the defendant was very harsh and cruel and she did not want to live with the plaintiff on one pretext or the other and used to invent the occasions to stay with her parents family, though the plaintiff had tried his level best to keep the defendant happy with all care and love. The defendant had visited many times to her parental home and on each occasion she used to create scene by refusing to return back to matrimonial home and she always insisted / forced the plaintiff to stay separately from his parents at her parental home in Village Tamkoli, Aligarh, U.P. But, the plaintiff with the help of the relatives and well-wishers used to reconcile the matter and brought her back to matrimonial home on each such occasion. On 22/05/1997, the defendant went to Village Ismailpur, Aligarh to attend the funeral Suit No.88/06 Page 2 of 9 of her brother's son along with the parents of the plaintiff and when all the funeral rites were over the mother of the plaintiff asked the defendant to return to home. On this, the defendant had insisted to stay there for sometime at the instance of her mother and gave the 8 month old child to the mother of the plaintiff and assured to came back home with her brother after 2-3 days, but the defendant did not return and after 15 days, when the father of the plaintiff went to took her back to matrimonial home, she did not came back to matrimonial home and instead went to her parental home at Village Tamkoli. The plaintiff himself visited her parental home next week, but the defendant flatly refused to return to matrimonial home and demanded divorce from the plaintiff. Finding no other way, the plaintiff had sent a notice on 07/02/1998, which the defendant refused to received. Then, plaintiff had sent another legal Notice on 02/04/1998 thereby asked the defendant to join the plaintiff at the matrimonial home, but the said notice was also returned back with the postal remarks that the defendant is undergoing treatment at Delhi, not in village, sent back to sender. When all the efforts of the plaintiff to reconcile the matter proved futile, then the plaintiff in the presence of the two witnesses namely Sh. Hisamuddin and Sh. Iqtedar, pronounced the triple Talaq to the defendant in accordance with the Muslim Law on 10/06/1998 using the following words three times:-
MEIN MOHD. AHMAD KHAN APNI PATNI RUKHSANA KO TALAQ DETA HOON. (I, Mohd. Ahmad Khan, divorce my wife Rukhsana).
These words pronounced by the plaintiff amounts to valid Talaq under the Muslim law and the Talaq became effective and irrevocable from the time of pronouncement. Thereafter, the plaintiff had executed the Talaknama in accordance of the Muslim law duly signed by the plaintiff and aforesaid Suit No.88/06 Page 3 of 9 witnesses. The aforesaid Talaknama was sent to the defendant at her parental home but the defendant had refused to receive the same. The plaintiff had also sent the copy of said Talaknama at Delhi address and the same was returned back with remarks not met despite repeated visit. The plaintiff had contested the petition under Section 125 Cr.P.C. vide case No.39/98 (decided as 197/05) and in his written statement on 07/01/1999 took the plea of Talaq and asserted in Para No.3 of the preliminary objections that the plaintiff had divorced the defendant on 10/06/1998 and according to the settled principle of law, this assertion in Written Statement also amounts to Talaq under the Muslim Law the said point was also argued during the course of final argument in aforesaid case before the Court of Ms. Ruby Alka Gupta, Ld. MM, Karkardooma Courts, Delhi. But the Ld. MM did not consider the factum of aforesaid Talaq under the Muslim Law and rejected the plea of Talaq of the plaintiff to which the plaintiff had filed a Criminal Revision against the said Order on 13/01/2006 which is pending adjudication at the time of filing of present suit. The plaintiff got a Fatwa issued by the Mufti District Kazi, Aligarh whereby the said Fatwa also confirmed the irrevocable Talaq under Muslim Law. The factum of Talaq was also intimated to the defendant through her father by a letter under Postal Certificate dated 16/06/1999. The defendant in order to harass the plaintiff had filed a Petition under Section 125 Cr.P.C. and also a false case under Section 498-A/406 IPC vide FIR No.318/2001 of PS Welcome. Hence, the present suit.
3. The defendant had contested the present suit by filing detailed written statement wherein preliminary objections had been taken by her interalia the present suit had been filed without any cause of action and plaintiff is guilty of latches in filing the present suit. The suit of the plaintiff is liable to be Suit No.88/06 Page 4 of 9 dismissed under the provisions of Section 41 (i) of The Specific Relief Act. The plaintiff did not prove in accordance to law nor produced any witness of the Talaqnama and the Fatwa and this fact was duly observed by the Court of the Ld. MM and to take advantage of his own wrong, the plaintiff had filed the present suit for declaration. In the application for interim maintenance which was decided by Ld. MM on 27/09/1999 with observations that the Talaqnama filed by the plaintiff does not bears endorsement of the said two witnesses in token of their presence at the relevant time. The plaintiff feeling aggrieved by the order of interim maintenance had also filed a revision challenging the jurisdiction of the court as well as the factum of divorce and revision was also dismissed. Thus, the present suit is liable to be stayed under Section 10 of the CPC. The present suit of the plaintiff is liable to be dimissed as the same is hit by the principles of res - judicata. The present suit is liable to be dismissed under Section 34 of The Specific Relief Act. The plaintiff had not came to the court with clean hands and suppressed the true and material facts. The factum of divorce had never been communicated either orally or in writing to the defendant by the plaintiff at any point of time. The suit of the plaintiff has not been valued properly for the purpose of court fee and jurisdiction and suit of the plaintiff is liable to be dismissed.
On merits, the parawise reply had been given by the defendant to the plaint of the plaintiff by denying the allegations / contentions of the plaintiff and prayed for dismissal of the present suit with costs.
4. Plaintiff had filed the replication controverting the allegations / contentions in the written statement of the defendant and contents of the plaint had been reiterated and reaffirmed.
Suit No.88/06 Page 5 of 95. From the pleadings of the parties following issues were framed vide order dated 24/08/2006 as under :-
(i) Whether the plaintiff is entitled for a decree of declaration of divorce as prayed for? OPP.
(ii) Whether the suit of the plaintiff is without any cause of action? OPD.
(iii) Relief.
6. The plaintiff in support of his case led his evidence and got examined himself as PW-1, Sh. Hisamuddin as PW-2, Sh. Kamal Kishore, LDC from Record Room as PW-3 and Sh. Iqtedar as PW-4. The PW-1, PW-2 and PW-4 had filed their evidence by way of affidavits wherein they reiterated and reaffirmed the contents of the plaint. The PW-1, PW-2 and PW-4 were cross- examined by the counsel for the defendant.
The plaintiff / PW-1 in his testimony had relied upon the notice dated 07/02/1998 Ex. PW1/A, Talaknama Ex. PW1/B, copy of Talaknama Ex. PW1/C, copy of written statement Ex. PW1/D, copy of Fatwa Ex. PW1/E, copy of letter dated 16/06/1999 Ex. PW1/F and UPC Ex. PW1/G.
7. The defendant had also led her evidence and got examined herself as DW-1. The defendant/DW-1 had filed her evidence by way of affidavit wherein she reiterated and reaffirmed the contents of the written statement. The defendant/DW-1 was cross-examined by the counsel for the plaintiff.
Suit No.88/06 Page 6 of 98. This court heard the final arguments advanced on behalf of the parties and perused the material available on record.
9. The issue-wise findings of this court are as under:-
Issue No. (i) and (ii) are taken up together as same are inter- connected and require common discussion.
Issue no.(i):- Whether the plaintiff is entitled for a decree of declaration
of divorce as prayed for?
Issue no.(ii):- Whether the suit of the plaintiff is without any cause of
action?
The onus of proving the issue No.(i) was on the plaintiff and onus of proving the issue No.(ii) was on the defendant.
In the present case, the plaintiff has prayed for decree of declaration. To maintain a suit for declaration following essentials must be established :-
(i). that the plaintiff is a person entitled to any legal character or to any right as to property;
(ii). that the defendant is a person denying or interested to deny the plaintiff's title to such character or right;
(iii). the declaration sued for is a declaration that the plaintiff is entitled to a legal character or to a right to property;
(iv). whether the plaintiff is able to seek further relief Suit No.88/06 Page 7 of 9 than a mere declaration of title, he must seek such relief.
It is the case of the plaintiff that he had pronounced the tripple Talak to the defendant on 10/06/1998 in the the presence of two witnesses and factum regarding Talak had been communicated to the plaintiff on 16/06/1999 and the plaintiff had also got issued the Fatwa and the Fatwa also confirmed the irrevocable Talak under Muslim Law and factum regarding Talak had been asserted by the plaintiff in the written statement on 07/01/1999 in case under Section 125 Cr.P.C. which also amounts to Talak.
As per The Limitation Act, 1963, the suit for obtaining declaration shall be filed within three years when the right to sue first accrues. In the present case the plaintiff himself admitted that he had pronounced the tripple Talak to the defendant on 10/06/1998 and factum regarding Talak had been communicated to the plaintiff on 16/06/1999 and by way of written statement on 07/01/1999. But the plaintiff had filed the present suit on 17/01/2006 whereas it should have been filed by the plaintiff within the period of three years from the date of pronouncement of Talak and from the date of communication of Talak. But, the plaintiff had failed to file the present suit within the period of limitation as prescribed by The Limitation Act, 1963. The suit of the plaintiff is barred by limitation. Since, the plaintiff had failed to file the present suit within the period of limitation, he is not entitled for the decree of declaration of divorce under Muslim law as prayed by him in the present suit.
Since, it has already been held that the present suit of the plaintiff is barred by limitation, there is no need to discuss the merits of the present case.
Suit No.88/06 Page 8 of 9In view of the aforesaid discussion, issue No. (i) and (ii) are decided in favour of the defendant and against the plaintiff.
ISSUE NO. (iii):- Relief.
In view of the findings of this court on aforesaid issues, the suit of the plaintiff is dismissed. No order as to costs.
Decree sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
Announced in the open court (VIJAY SHANKAR)
on 28/02/2012 ACJ/ARC (NE),
KKD COURTS,
DELHI.
Suit No.88/06 Page 9 of 9