Delhi District Court
Razia Begum vs Umardeen on 10 December, 2013
IN THE COURT OF MS. SHUCHI LALER, ADMINISTRATIVE
CIVIL JUDGE-CUM-ADDITIONAL RENT CONTROLLER (NORTH-
EAST), KARKARDOOMA COURTS, DELHI.
Suit No. : 294/2011
Unique Case ID No. : 02402C0308762011
In the matter of :-
Razia Begum
D/o Abdul Sattar
Ex-wife of Umardeen
R/o C-3/711, Nand Nagri,
Delhi-110093 ....Plaintiff
Versus
Umardeen
S/o Late Sh. Imamuddin
R/o H.No. 681-682, Block-2,
Near Masjid, Nangloi, Delhi
Presently C/o Fateh Mohd.,
H.No. A-800, Phase-II, A-Block,
Budh Bazar Road, Nangloi,
Delhi-110041 ....Defendant
SUIT FOR DISSOLUTION OF MARRIAGE
UNDER MUSLIM LAW
Date of Institution of the Suit : 12/10/2011
Date on which Judgment was reserved : 10/12/2013
Date of Judgment : 10/12/2013
Ex-PARTE JUDGMENT :-
1.Vide this Judgment, I shall decide a suit for Dissolution of Suit No. 294/11 Page 1 of 7 pages Marriage under Muslim Law filed by the plaintiff.
2. The brief facts, as disclosed in the plaint, are as follows :-
The marriage between the parties was solemnized 25 years ago and out of the said wedlock, 6 children were born. The plaintiff has alleged that the defendant used to harass, insult and torture her and her children over petty matters. The plaintiff has stated that the defendant has solemnized second marriage with Ms. Nasima, third marriage with Ms. Lalita and fourth marriage with Ms. Nasreen with whom the defendant is presently residing. The plaintiff has averred that the defendant had divorced her at Nangloi near Masjid when the plaintiff had gone to attend the marriage of her relative on 24.10.2012 at 8.00 p.m. It has been alleged that on 11.05.2011, at about 10.20 p.m, the defendant came to the house of the plaintiff and tried to break the main gate of the house and threw stones towards the house of the plaintiff and used shameful words. A DD no. 69-B was made in this regard. The plaintiff has also alleged that on 13.09.2011, at about 11.00 a.m, the defendant poured kerosene oil on the plaintiff and the defendant was saved due to the intervention of the brothers of the plaintiff. It has been further alleged that on 13.09.2011 at about 11.00 p.m, the defendant entered the house forcibly and gave merciless beatings to daughter Shazia. The plaintiff has averred that on 22.09.2011, at about 11.00 a.m, and on 04.10.2011, at about 1.00 p.m, the Suit No. 294/11 Page 2 of 7 pages defendant threatened the plaintiff to vacate the house and also used shameful words. Hence, the present suit.
3. The defendant was served through affixation, however, none appeared on behalf of defendant and the defendant was proceeded ex parte vide order dated 09.07.2012.
4. Thereafter the matter was listed for ex-parte evidence. Plaintiff in support of her case has examined herself as PW1. She has deposed by way of an affidavit in lieu of examination-in-chief which is Ex.P1. In her examination-in-chief, plaintiff has reiterated the facts stated in her plaint. PW1 has relied upon the documents such as life insurance corporation policy Ex. PW1/A, photo with Lalita Ex. PW1/B, newspaper dated 21.11.2011 Ex. PW1/C and complaint dated 24.01.2011 Ex. PW1/D. Thereafter, ex-parte evidence was closed.
5. I have heard the Ld. counsel for the plaintiff and perused the record with his assistance.
6. By way of the present suit, the plaintiff has sought the relief that a decree of declaration be passed to the effect that the defendant has divorced the plaintiff on 24.10.2010 at 8.00 p.m. The plaintiff/PW1 has deposed that on 24.10.2010, when she had gone to attend the marriage of her relative, the defendant had divorced her at Nangloi near Masjid.
7. In the case titled as Riaz Fatima and Anr. Vs. Mohd. Sharif Suit No. 294/11 Page 3 of 7 pages I (2007) DMC 26 the Hon'ble High Court has laid down certain prerequisites, which are to be fulfilled, before a Muslim husband is able to divorce his wife. The Hon'ble High Court observed that divorce cannot be said to have taken place unless following prerequisites are proved:
1) Divorce must be for a reasonable cause that is mandatory of Holi Quran. Therefore, when a dispute arises, the husband has to give evidence showing what was the cause which compelled him to divorce his wife.
2) He must prove that there was proclamation of Talaq thrice in the presence of witnesses or in a letter. Till it is proved, Talaq is not valid (M.Shashul Hameed Vs. A.Salima AIR 2003 Madras 162)
3) There has to be proof of payment of Mehar amount or observance of period of Iddat.
4) The husband has also to prove that there was attempt for settlement/conciliation prior to the divorce.
8. Unless the ingredients discussed herein above are proved, it cannot be said that there was a valid divorce. In the entire plaint, the plaintiff has not mentioned the cause of her divorce, whether the divorce was pronounced in the presence of the witnesses, whether she has received the Mehar amount or whether she had observed Iddat. None of the ingredients referred herein above have been pleaded by the plaintiff, Suit No. 294/11 Page 4 of 7 pages hence, it cannot be said that a valid Talaq had taken place between the parties on 24.10.2010 at 8.00 p.m.
9. A meaningful reading of the plaint reveals that the present suit can be treated as a suit for divorce under section 2 of Dissolution of Muslim Marriage Act, 1939. Accordingly, the discussion herein below would be in the light of assuming the present suit to be one under section 2 of the Dissolution of Muslim Marriage Act, 1939.
A woman married under Muslim Law, may get a decree for dissolution if she proves any one or more of the grounds mentioned in Section 2 of the Dissolution of Muslim Marriage Act, 1939. Section 2 contains nine grounds on the basis of any one of which a wife married under Muslim law may file a petition for divorce.
Perusal of the plaint reveals that the plaintiff has leveled the allegations of cruelty against the defendant, hence the case of the plaintiff would be covered by sub-section (viii)(a) of section 2 of Dissolution of Muslim Marriage Act.
10. Section 2 (viii) (a) entitles a Muslim Wife to obtain a decree of divorce if, her husband treats her with cruelty, that is to say, habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill treatment.
11. Cruelty, no doubt, constitutes a pompous ground for Suit No. 294/11 Page 5 of 7 pages dissolution of marriage, as the term cruelty and love and affection are repugnant to each other. There is no strait jacket formula to define cruelty. In deciding whether or not a particular state of affairs amounts to legal cruelty, the court has to consider the social status, the environment, the education, the mental and physical condition, sustainability of innocent spouse and also the customs and manners of the parties. Whether act or conduct, complained of constitutes cruelty, has to be determined with reference to whole conjugal relationship. Cruelty under the present act means not only physical assault by the husband which endanger the life of the wife, but it also includes mental cruelty.
12. From the evidence of the plaintiff on record which has remained unrebutted, uncontroverted and unchallenged, it is apparent that the defendant has treated the plaintiff with cruelty. The fact that the plaintiff had been humiliated, harassed and tortured is clearly an act of mental cruelty upon the plaintiff. PW1 has testified that the defendant had tried to kill her by pouring kerosene upon her on 13.09.2011, this too amounts to an act of cruelty. PW1 has narrated the specific incidents dt. 11/05/2011,13.09.2011 and 22/09/2011 when the defendant gave beatings to her and uttered shameful words. There is no reason to disbelieve the uncontroverted, unrebutted and unchallenged version of the plaintiff. Cumulatively all these acts, in my opinion are sufficient to hold that the Suit No. 294/11 Page 6 of 7 pages defendant has treated the plaintiff with cruelty, the plaintiff is thus entitled to a decree for dissolution of marriage.
13. In view of foregoing reasons and discussion, the plaintiff Ms. Razia Begum is entitled to a decree for dissolution of her marriage with the defendant Mr. Umardeen. Accordingly, marriage of the plaintiff with the defendant is dissolved.
Decree-sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
Announced in the open court (SHUCHI LALER)
on this 10th day of December, 2013 ACJ/ARC (NE),
KKD COURTS, DELHI.
Suit No. 294/11 Page 7 of 7 pages
Suit No. 294/11 Page 8 of 7 pages