Madras High Court
Jameel Unissa Begam vs Shah Jahan on 2 July, 2012
Author: V.Periya Karuppiah
Bench: V.Periya Karuppiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:02.07.2012 CORAM THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH S.A. No.309 of 1999 Jameel Unissa Begam ...Appellant Vs. Shah Jahan ...Respondant PRAYER: Appeal filed under Section 100 of Civil Procedure Code against the judgment and decree passed in A.S.No.89 of 1995 by the Principal District Judge, Villupuram, dated 10.08.1998, confirming the judgment and decree passed in O.S.No.729 of 1993 dated 23.01.1995 by the Additional District Munsif, Villupuram. For Appellant : Mr.J.Ravikumar For Respondent : Mr.T.Dhanyakumar J U D G M E N T
This appeal is directed against the judgment and decree passed by the first appellate court in A.S.No.89 of 1995 dated 10.08.1998 in confirming the judgment and decree passed by the trial court made in O.S.No.729 of 1993 dated 23.01.1995 in decreeing the suit filed by the plaintiff.
2. The appellant herein was the defendant and the respondent was the plaintiff before the trial court. For convenience, the status of parties before the trial court is being maintained infra.
3. The plaint averments which would disclose the case of the plaintiff would be as follows:
a) The plaintiff married the defendant on 26.04.1987 at Panruti. Out of the lawful wedlock, a son was born to them. The defendant's attitude towards the plaintiff was not congenised and the defendant now and then left for her parents house at Panruti without even informing her in-laws, when her husband was away on duty.
b) In the mean while, after the birth of the son, the plaintiff who wanted to do the degree course in Engineering got his job transferred to Chidambaram. The defendant lived there for about six months with the plaintiff. The defendant left the house and went to Panruti, taking away all the jewels and clothing, along with her father. All the efforts taken by the plaintiff to bring back the defendant failed. The conduct of the defendant leaving the plaintiff and living with her parents for more than two years without any lawful cause would amount to desertion. Hence, the suit for divorce has been filed by the plaintiff on the ground of desertion.
4. The objection of the defendant in the written statement would be as follows:
a) The plaintiff has filed the suit to get rid of the defendant by making false allegations. By the date of the marriage, the plaintiff was qualified only as Diploma Holder in Civil Engineering. At the eve of marriage, the defendant's parents gave a dowry of Rs.10,000/- to the plaintiff's parents after the betrothal. Apart from that, 40 sovereigns of jewels were gifted to the plaintiff and defendant. Out of that, the plaintiff's parents are still having custody of 11-1/4 sovereigns of jewels and the defendant has been wearing the remaining jewels of 28-3/4 sovereigns. The plaintiff is also in custody of a Radio watch worth about Rs.10,000/- gifted by the defendant's father. It is entirely false to state that the defendant changed her attitude towards the plaintiff and was not leading a happy matrimonial life with the plaintiff. It is the defendant's parents who met all the expenses for establishing a family at Chidambaram so as to enable the plaintiff to join the Evening college for the degree course in Civil Engineering. The plaintiff's parents were indifferent and neglecting towards defendant. During the period of stay at Chidambaram, it is the plaintiff who used to take the defendant and her son to Panruti and back to Chidambaram as and when necessary. The plaintiff got a job as a draftsman in Public Works Department at Chidambaram. It is the plaintiff who asked the defendant's father to take the defendant and her son to Panruti for their temporary stay until the plaintiff get transfer to Cuddalore. It is false to state that the defendant deserted the plaintiff and she is refusing to live with the plaintiff.
b) The plaintiff's parents instigated him to marry another girl in a rich family, for the reason that he is now a fully qualified Engineer which would fetch them more dowry. It is false to state that the defendant deserted the plaintiff for more than 2 years and that she has ceased to cohabit with the plaintiff. The plaintiff's parents were hostile and cruel towards the defendant and had malafide intention. In such circumstances, the plaintiff and his parents constructed a new house at V.G.P. Nagar, near Vazhudareddi a suburb of Villupuram. There the defendant lived for about a month, bearing all the cruelties and ill-treatment of the plaintiff and the in-laws of his family.
c) After a week, they drove out the defendant and her son once again and therefore, the defendant was obliged to take shelter at her parent's house in Panruti. Hence, the defendant's parents took the matter to the notice of Panruti Jamath. It is only with the help of Panruti Jamath the re-union of the plaintiff and the defendant took place in January, 1993 which lasted only for a week. Even the temporary re-union between the 6th September and 29th September,1993 was brought about at Villupuram Jamath. The defendant never refused to live with the plaintiff but it is the plaintiff's parents who made the joint living of the plaintiff and the defendant very difficult. It is only at their instance, the plaintiff has filed the suit.
d) The plaintiff has no cause of action for the suit. It is significant to note that the plaintiff has come forward with the suit for divorce, at the first instance, without seeking for restitution for conjugal rights. As the defendant is willing and ready to live with the plaintiff, there is no need for passing any decree of divorce. The suit itself is misconceived and unsustainable in law and on facts.
5. On the aforesaid pleadings, the trial court had framed necessary issues and entered trial. After appraising the evidence adduced before it, the learned trial Judge had passed a conditional decree in favour of the plaintiff.
6. Aggrieved against the said judgment and decree passed by the trial court, the defendant preferred an appeal before the first appellate court in A.S.No.89 of 1995. The first appellate court heard the arguments of both sides and had come to the conclusion of dismissing the appeal confirming the judgment and decree passed by the trial court.
7. Having aggrieved by the judgment and decree passed by the first appellate court, the defendant preferred the present second appeal before this court.
8. On admission of the second appeal, this court had formulated the following substantial questions of law for consideration in the appeal.
i) Whether the judgment and decree of the courts below are contrary to law?
ii) The courts below acted contrary to law in granting the decree for divorce when the only ground on which the divorce was claiming, namely 'desertion' was held not established by both the courts below?
9. Heard Mr.J.Ravikumar, learned counsel for the appellant/defendant and Mr.T.Dhanyakumar, learned counsel for the respondent/plaintiff.
10. The learned counsel for the appellant/defendant would submit in his argument that the courts below have miserably failed to find that there was no ground for divorce which has to be established in accordance with the Mohammeden law. He would further submit that the ground on which divorce claimed was 'desertion' and even if the said ground is necessary to grant divorce by the court, it was not established by the plaintiff before the courts below. He would also submit that the ideology of the courts below was that mere filing of the plaint by the husband would bring divorce, at the moment when it was served against the wife, is irrelevant and contrary to the provisions of Muslim law.
11. The learned counsel for the appellant would also submit that the concept of grant of divorce under Muslim Law has been regulated by the judgment of the Honourable Apex court reported in 2002 SCC (Criminal) 1814 (Shamim Ara Vs. State of U.P. and another) and the principles, laid down in the aforesaid Judgment have not been followed by the courts below, whereas the trial court had granted a conditional decree. He would also submit in his argument that while the trial court has given three months time for joint living, it ought to have rejected the claim of divorce and there should not be two reliefs, which are mutually contradictory. He would also submit that the concept of divorce as contemplated in Muslim Law has not been followed by the courts below, but they have simply adopted the ground for desertion which is not applicable to muslims.
12. The learned counsel for the appellant would also cite a judgment of this court reported in 2003 (1) Law Weekly 370 (A.S.Parveen Akhtar Vs. The Union of India, represented by the Secretary to Government, Ministry of Law, New Delhi and others) for the principle that the word 'Talaq' as declared by the Honourable Apex Court must be for a reasonable cause, and must be preceded by an attempt to reconciliation between the husband and wife by two arbiters, one chosen by wife's family and the other from the husband family and it is only if their attempts fail, 'Talaq' may be effected.
13. The learned counsel for the appellant would also refer to the muslim personal Law (Shariat Application Act, 1937 ). in support of his argument. He would also submit in his argument that the plaintiff has pleaded desertion of marital life by the defendant as the only cause for the divorce. He would also submit that in Mohammeden Law, the only reason under which Talaq could be effected by the husband is 'adultery of the wife' and that too, in an extreme necessity. He would further submit that whatever the case may be, two arbiters, one from husband's family side and another from wife's family side to be appointed and if there is no possibility of reconciliation, then only 'Talaq' or divorce can be either pronounced by the husband or sought for through the Court. He would further submit that the plaintiff did not speak about such arbiters on either side appointed by husband's family and wife's family and therefore, the cause put forth by the husband to issue grant of divorce cannot be sustained. He would further submit that the trial court had given joining time of three months for the wife/defendant with her husband/plaintiff and in default, to grant a decree of divorce which are contrary. Since the cause put forth by the plaintiff/husband was not adverted to grant divorce by the court or to pronounce Talaq by the husband, the decree passed by the trial court is not sustainable. He would also submit that the first appellate court was also not correct in coming to the conclusion that the evidence produced by the plaintiff would be sufficient to hold that the wife had deserted the plaintiff, for ordering divorce. The said decision reached by the first appellate court is contrary to law and therefore, it has to be set aside.
14. The learned counsel for the appellant would also submit that the first appellate court ought to have reversed the judgment and decree passed by the trial court but it did not do so and therefore, the judgment of the first appellate court is also liable to be interferred and set aside and the suit filed by the plaintiff ought to have been dismissed. He would therefore, request the court to allow the second appeal and thereby, to set aside the judgment and decree passed by the courts below and to dismiss the suit, seeking for divorce.
15. The learned counsel for the respondent / plaintiff would submit in his argument that the plaintiff was entitled to seek the prayer for divorce through court, even though, he is entitled to pronounce 'Talaq' in order to terminate the marriage relationship with the defendant. He would further submit that the defendant, after the marriage with the plaintiff on 26.04.1987 at Panruti, lived with the plaintiff and out of the wed lock, a son was born to them. The plaintiff wanted to do Engineering degree course at Chidambaram and was staying there. He would also submit that the defendant, without permission of the plaintiff, left the house of the plaintiff from Chidambaram and went to Panruti to her parents' house taking away all her jewels and clothing, with her father. He would further submit that the attempts made by the plaintiff through Jamath of Villupuram Wallaja Mosque and the Jamath of Panruti Town could not succeed to make them re-united and the defendant did not come to live with the plaintiff.
16. The learned counsel for the respondent would also submit that the defendant has deserted the plaintiff without any reasonable cause and therefore, the plaintiff is entitled to seek for divorce against the defendant to bring the marital life to end. He would also submit that the trial court on considering the various facts and circumstances of the case and submissions of both parties had come to the conclusion of granting a decree of divorce by giving an opportunity to the defendant, a period of 3 months, to join with the plaintiff and to live with him and on her default only, a divorce decree has been passed. He would also submit that the plaintiff has proved that the defendant had deserted and was living separately and therefore, the ground for the grant of divorce was very much proved before the courts below and therefore, the first appellate court in concurrent with the view taken by the trial court, had dismissed the appeal preferred by the defendant. He would also submit that the plaintiff, even though, is entitled to pronounce 'Talaq' against the defendant, he did not choose to do so but wanted to take steps only through the Court of Law. He would therefore, request the court to dismiss the appeal and to confirm the concurrent finding reached by the courts below.
17. I have given anxious thoughts to the arguments advanced on either side.
18. The case of the plaintiff was that the plaintiff and the defendant married on 26.04.1987 according to the Muslim Law and Rites at Panruti and out of the wed lock, they have one son which has not been disputed. It is also an admitted fact that the plaintiff had joined the Engineering degree course at Chidamabaram and got his job transferred to Chidambaram and both plaintiff and the defendant were living at Chidambaram. It is also not disputed that the parents of the defendant are living at Panruti.
19. The grievance put forth by the plaintiff was that the defendant had left the marital house without even informing the plaintiff and had gone to Panruti. The plaintiff's case is that he attempted to solve the dispute through the Villupuram Jamath and Panruti Jamath but it ended in vain. No doubt, the defendant was not living with the plaintiff and she was living separately. In the said circumstances,
i) whether the separate living of the defendant from the plaintiff would be amounting to desertion and
ii) When the plaintiff did not abuse the defendant with the charge of adultery or any gross negligence to look after the plaintiff, has been proved on the part of the plaintiff, are the questions to be seen.
20. When the plaintiff himself did not adduce any reason for her separate living from him, how a decision would be drawn through the evidence adduced by the plaintiff that it could be only a separate living by the defendant since she did not want to live at Chidambaram.
21. According to the judgment of the Honourable Apex court reported in 2002 SCC (CRI) 1814 (Shamim Ara Vs. State of U.P. and another), the divorce or Talaq should have been for a reasonable cause and be preceded by attempts and reconciliation between the husband and wife by two arbiters, one from the wife's family and the other from the husband's family.
22. The relevant passage from the said judgment would be as follows:
The correct law of talaq as ordained by the Holy Quran is that talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters-- one from the wife's family and the other from the husband's; if the attempts fail, talaq may be effected (para 13). In Rukia Khatun case the Division Bench stated that the correct law of talaq, as ordained by the Holy Quran, is: (i) that "talaq" must be for a reasonable cause; and (ii) that it must be preceded by an attempt of reconciliation between the husband and the wife by two arbiters, one chosen by the wife from her family and the other by the husband from his. If their attempts fail. "talaq" may be effected. The Division Bench expressly recorded its dissent from the Calcutta and Bombay views which, in their opinion, did not lay down the correct law.
23. When we apply the principle laid down by the aforesaid judgment, we could see that the plaintiff did not put forth a plea that two arbiters have been appointed on either side of the family and they tried for reconciliation and it failed and thereafer only, he had approached the court for the grant of divorce.
24. The judgment of this court reported in 2003 (1) Law Weekly 370 (A.S.Parveen Akhtar Vs. The Union of India, represented by the Secretary to Government, Ministry of Law, New Delhi) was also on the same view. The relevant passage would be as follows:
A large and influential body of jurists regard talak emanating from the husband as really prohibited except for necessity, such as the adultery of the wife. Another section consisting chiefly of the M'utazilas, consider talak as not permissible without the sanction of the judge administering the Musulman Law. They consider that any such cause as may justify separation and remove talak from the category of being forbidden, should be tested by an unbiased judge; and, in support of their doctrine, they refer to the words of the Prophet already quoted, and his direction that in case of dispute between the married parties, arbiters should be appointed for the settlement of their differences. The Hanafis, the Malikis, the Sahfeis and the bulk of the Shiahs hold talak to be permitted, though they regard the exercise of the power without any cause to be morally or religiously abominable."
25. He has also quoted the words of Holy Quran, which says "Any if you fear a breach between the two, appoint an arbiter from his people and an arbiter from her people. If they desire agreement, God will effect harmony between them."
26. The principles laid down by the Honourable Apex court and this Court as well as the message from the Holy Quran would go to show that two arbiters from either side must be appointed and if they desire for such divorce or Talaq agreement, such divorce alone could be granted.
27. As already discussed, I could see that the Villupuram Jamath or Panruti Jamath have not been stated to have been appointed on either side to act as arbiters. It is a simple thing that any person one on the side of the plaintiff and one on the side of the defendant can attempt jointly for reconciliation.
28. Pending dispute in between the parties, no attempt of compromise has been done. Moreover, the words of Holy Quran would go to show that when these two arbiters and the parties desire for divorce, then only any Talaq could be pronounced or divorce can be sought for from the Court. In this case, nothing was pleaded so. However, the courts below have found that the separate living of the defendant was amounting to desertion and without any reconciliation, the courts below have granted a decree of divorce which would not be in lines of the principles laid down by this Court as well as by the Honourable Apex Court and with the words of Holy Quran. Therefore, I have no hesitation to interfere the concurrent judgment reached by the courts below, since they did not perceive the evidence properly but had come to the conclusion against the principles of Islam.
29. Therefore, the questions of law are to be decided only in favour of the appellant since the courts below have not either applied the evidence properly or applied the principles of law correctly to decide the dispute on hand. The suit filed by the plaintiff for divorce was without any basis and therefore, it ought to have been dismissed by the courts below. But, the 1st appellate court had simply confirmed the said decree which is not in accordance with law. Therefore, I am of the view that the decree passed by the courts below are contrary to law and on the evidence adduced before the trial court and therefore, the judgment and decree passed by the courts below are liable to be set aside. Consequently, the suit filed by the husband seeking for divorce is liable to be dismissed.
In fine, the Second appeal is allowed and the judgment and decree passed by the courts below are set aside and consequently, the suit filed by the plaintiff is dismissed with costs. There is no order as to costs in this appeal.
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