Calcutta High Court (Appellete Side)
Gulsanara Begum vs Rahul Sk. & Ors on 28 August, 2015
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present :
The Hon'ble Mr. Justice Ashis Kumar Chakraborty
S.A. No. 138 of 2012
Gulsanara Begum
Vs.
Rahul Sk. & Ors.
For the appellant/defendant no. 1 : Mr. Nirmal Kumar De.
Mr. Nibaran Kumar Das
Ms. Namrata Das.
Heard on :- August 21, 2015
Judgment on: - August 28, 2015.
Ashis Kumar Chakraborty, J.
This second appeal is directed against the judgment and decree dated February 25, 2010 passed by the learned Additional District Judge, Jangipur, Murshidabad in Title Appeal No. 14 of 2009 reversing the decree passed by the learned Civil Judge (Junior Division), 2nd Court, Jangipur, Murshidabad in Matrimonial Suit No. 04 of 2006 rejecting the suit for restitution of conjugal rights filed by the respondent no. 1 husband and decreeing the suit for restitution of conjugal rights filed by the respondent no. 1 against the appellant wife. The proforma respondent nos. 2 and 3 are the parents of appellant..
On May 4, 2012 the Division Bench, while admitting the second appeal, directed that the second appeal will be heard on the following substantial question of law:
"In view of the defence taken by the wife that she has divorced her husband on April 5, 2006 in accordance with the power vested in her by her husband, whether the learned judge in the lower appellate court, substantially, erred in law in decreeing the suit for restitution of conjugal right in favour of the husband?"
At the time of admission of the second appeal in an application being CAN 615 of 2012 the Division Bench also passed an order restraining the respondent no. 1 husband from putting the decree for restitution of conjugal rights into execution. The said order of injunction is valid till disposal of the appeal.
The notice of appeal was duly served upon the respondent no. 1 husband. The appeal was ready for hearing. The learned counsel appearing for the appellant mentioned the appeal for hearing and the appeal was appearing in the list for some time. When this appeal was taken up for hearing on August 21, 2015, Mr. De, learned counsel appearing for the appellant filed an affidavit of service disclosing that due notice was also served upon the respondent no. 1 that this appeal would be taken up for hearing, by this Court. However, when this appeal was taken up for hearing on August 21, 2015, none appeared on behalf of the respondent no. 1 husband. In these circumstances, the appeal was taken up for hearing in the absence of the respondent no. 1.
The appellant and the respondent no. 1 were married on January 2, 2006 as per Mahomedan rites and customs and the marriage was consummated. The suit for restitution of conjugal right was filed by the respondent no. 1 husband on the ground that on March 28, 2006 the parents of the appellant came to his house and took away the appellant on the pretext of taking her out and thereafter the appellant stayed back with her parents. According to the respondent no. 1, he went to the house of the parents of the appellant but they abused him with filthy language and confined the appellant in a room and refused to send her back to the matrimonial home. The parents of appellant instigated the appellant not to come back to the house of the respondent no. 1. In the matrimonial suit the parents of the appellant were also impleaded as the defendant nos. 2 and 3. The appellant contested the matrimonial suit. In her written statement the appellant categorically stated that before marriage the respondent made her to believe that he was an employee of a private sector company in Kolkata but after marriage she discovered that the appellant is a taxi driver. At the time of marriage the respondent no. 1 granted her talak-e-tafeeuz. She was repeatedly tortured by the respondent no. 1 both mentally and physically. Ultimately on March 28, 2006 the respondent no. 1 drove her out of the matrimonial home and since then she started to reside with her parents. She categorically stated that having threat to her life and peace in view of the physical tortures by the respondent no. 1 on April 5, 2006 she divorced the respondent no. 1 by virtue of talak-e-tafeeuz conferred to her by the respondent at the time of marriage. She affirmed an affidavit recording the fact that on April 05, 2006 she granted talak to the respondent no. 1 and sent a copy of the said affidavit to the respondent no. 1 by registered post with acknowledgement due, but the respondent no. 1 having knowledge of the talak, refused to accept the said affidavit and the postal authority returned the envelope, containing the said affidavit with the endorsement 'refused'.
Based on the averments made in the plaint and the written statement filed by the respondent no. 1 husband and the appellant wife, the learned trial Court framed various issues, including, whether the appellant wife is the divorcee of the respondent no. 1 plaintiff and whether the respondent no. 1 plaintiff was entitled to get a decree as prayed for.
During the trial before the learned trial Court, both the respondent no. 1 husband and the appellant wife adduced evidence. In her evidence the appellant, proved the affidavit sworn by herself on April 6, 2005, recording the factum of talak granted by her to the respondent no. 1 husband on April 05, 2006 on the strength of the talak-e-tafeeuz conferred on her by the respondent no. 1 sent to the respondent no. 1, the acknowledgement due card and the envelope returned by the postal authority with the endorsement "refused" and the same were marked as as Exhibit- "A", "B" and "B-1" respectively.
After considering of the pleadings and the evidence of both the parties, the learned trial Court held held that the fact of divorce has been successfully proved by the appellant and accordingly held that the respondent husband is not entitled to get a decree for restitution of conjugal rights. Consequently the learned trial Court dismissed the suit.
The decree of the trial Court was carried in appeal by the respondent no. 1 before the lower appellate Court.
The learned lower appellate Court, however, reversed the decree passed by the learned trial Court. The learned lower appellate Court held that in the evidence of the wife there was no mention of any date time and place where the husband had granted talak-e-tafeeuz and the condition of such talak-e-tafeeuz. According to the learned lower appellate Court, there is no evidence from which it would be found that actually such power of talak-e-tafeeuz was delegated to the wife and held that the learned trial Court has wrongly held that the appellant is a divorced wife of the respondent no.
1. The learned lower appellate Court further held that there was no evidence to substantiate the claim of the wife that she was tortured or assaulted by the husband and that she was driven out by the husband from his house and since the husband is entitled to get a decree for restitution of conjugal rights against the wife. The lower appellate Court allowed the appeal as against the appellant wife but dismissed the appeal against her parents, the respondent nos. 2 and 3. The learned lower appellate Court decreed the suit against the appellant wife and dismissed the matrimonial suit against her parents the respondent nos. 2 and 3. Consequently, the learned lower appellate Court passed a decree for restitution of conjugal rights against the appellant wife.
Mr. De, appearing for the appellant wife in the second appeal, strenuously contended that in the instant case, the evidence of both the appellant wife and the respondent no. 1 husband before the learned trial Court taken as a whole is not capable of supporting any of the findings of the learned lower appellate Court and the learned lower appellate Court have arrived at the afore- mentioned findings by ignoring material evidence adduced by the parties. Thus, according to him the judgment and decree passed by the learned lower appellate Court is liable to be set aside in this second appeal. In support of such contention, Mr. De relied on the decision of the Supreme Court in the case Ramlal and Anr. vs. Phagua and Ors. reported in AIR 2006 SC 623.
Mr. De drew my attention to the written statement, examination-in-chief and cross- examination and the exhibit-"A" of the suit, being the affidavit affirmed by the appellant wife , where she had categorically stated that during the time of the marriage on January 02, 2006 the respondent husband granted her the power of talak-e-tafeeuz on the condition that in the event he does not maintain her fairly or metes out any ill-treatment to her, then she would be entitled to grant talak to the husband. Thus, according to Mr. De the finding of the learned lower appellate Court that there is no mention of any date, time and place where the husband has given wife the power to divorce or that the condition, of such talak-e-tafeeuz has not been disclosed by the wife and that under no circumstances it could be held that the wife had divorced the husband are all vitiated by perversity. According to him, even the finding of the learned lower appellate Court that there is nothing on record from which it could be found that the appellant wife was assaulted or tortured at the house of the respondent husband and that the circumstances as projected by the appellant wife for leaving the house of the respondent husband is not convincing at all and that the assertion of the husband that the appellant wife has withdrawn herself from his society without any rhyme or reason has been established, are all vitiated by perversity. Mr. De strenuously urged that since all the findings of the learned lower appellate Court resulting in passing of the impugned decree for restitution of conjugal rights against the appellant wife is vitiated by perversity, this Court should allow the second appeal and society the decree passed by the lower appellate Court.
I have considered the pleadings of both the respondent no. 1 husband and the appellant wife as also the evidence adduced by both of them before the learned trial Court. I have also considered the judgments of both the learned trial Court and the lower appellate Court. The factum of marriage between the parties on January 02, 2006 as per the Mahomedan rights and customs and that the marriage was consummated, are admitted by both the parties. The respondent in his evidence before the trial Court admitted that the denmahr that was payable by him to the appellant was fixed at Rs. 10,101/- and out of the said sum he had paid only Rs. 101/-, at the time of marriage and the balance amount of denmahr he has not paid to the appellant.
In his plaint, the respondent no. 1 claimed that on March 28, 2006, the parents of the appellant came to his house and took away the appellant on the pretext of taking her out but thereafter, the appellant did not return to the matrimonial home. According to the respondent no. 1 in his plaint after three days, he went to bring the appellant back but her parents abused him with filthy language and kept the appellant confined in the house Thereafter, he along with some friends and relatives went to bring back the appellant wife but her parents refused to send her back. All these allegations of the respondent husband was denied by the appellant wife in her written statement. She categorically stated that before marriage, the respondent no. 1 deceived him by stating that he was an employee serving a private company in Kolkata but after marriage she found the appellant was only a taxi driver and the appellant physically and mentally tortured her and ultimately, drove her out of their residence on March 28, 2006. Even the respondent no. 1 has not paid the balance denmahr. Thereafter, having threat to her life she divorced the respondent no. 1 by virtue of talak-e-tafeeuz conferred to her by the husband at the time of marriage on April 05, 2006 and she had sworn an affidavit on April 06, 2006 which was recording the factum the talak granted by her to the respondent husband also forwarded to the respondent by registered post with acknowledgement due but the respondent husband refused to accept the same and consequently the postal department returned the envelope with the endorsement "refused". The appellant wife in her written statement categorically denied that she left the matrimonial home with her parents or on her own volition or that the respondent no. 1 ever visited the house her parents to get her back the matrimonial home.
Under the Mahomedan Law, normally talak can be granted by the husband. However, there is an exception, that is, talak-e-tafeeuz, where a Mahomedan husband who has attained puberty and is of sound mind may, by an agreement made at the time marriage or subsequently, delegate his power to effect a talak to the wife herself. Talak-e-tafeeuz, that is, an agreement made before or after marriage, by which it is provided that the wife should be at liberty to divorce herself in specified contingencies is valid, if the conditions are of reasonable nature and not opposed to the policy of Mahomedan law. When such an agreement is made, the wife may, at any time after happening of any of the contingencies, repudiate herself in the exercise of the power, and a divorce will then take effect to the same extent, as if a talak has been pronounced by the husband. In this regard, reference may be profitably made to Section 314 of Mulla's Principles of Mahomedan Law (20th Edition).
In the instant case, the appellant has claimed that the respondent no. 1 had granted him the talak-e-tafeeuz at the time of their marriage in the marriage majlis, on the condition that in the event the respondent does not maintain her fairly or metes out any ill-treatment to her then she would be entitled to her grant talak to the respondent and dissolve the marriage.
In the suit, the respondent no. 1 adduced evidence through himself (PW1) and one of his friends Mantu Sk. (PW2). In his cross-examination, PW2 Mantu Sk. stated that the affidavit, as his examination-in-chief was prepared by PW1, the respondent plaintiff himself, he does not know who had prepared the said affidavit and he had put his signature in the said affidavit on the instruction of the respondent plaintiff. Thus, it is evident that the evidence adduced by the PW2 is no evidence at all in the eye of law. In any event the said PW2 did not depose that the appellant was not tortured by her husband or that she left the matrimonial home along with her parents or that the respondent husband ever visited the house of the appellant to get her back at the matrimonial home. Although, in his examination-in-chief through affidavit evidence, the respondent no. 1 husband asserted, the allegation made in the plaint, but he did not mention any of his family members, who was present at his house on March 28, 2006 when the parents of the appellant wife came to their house and took away the appellant wife along with them. Not a single member of the family of the respondent no. 1 came forward to adduce evidence that on March 28, 2006 the appellant left their house along with her parents. Even in his cross-examination, the appellant could not remember a single date when he visited the residence of the parents of appellant to take the appellant back or the names of his relative and friends, who accompanied him during such visits to the residence of the parents of the appellant wife.
In his evidence, the appellant wife categorically stated that she had married the respondent without the knowledge of her parents and her parents were not aware of her marriage until she went to him after being driven out by the respondent husband from the matrimonial home on March 28, 2006 and that the allegation of the respondent husband that she left the matrimonial home on March 28, 2006 along with her parents untrue. The respondent husband impleaded the parents of the appellant wife in the suit on the defendant nos. 2 and 3 on the ground that took the appellant away from his house and whenever he visited their house to take the appellant wife back to the matrimonial home they abused him with filthy language and they confined the appellant wife in a single room of their residence and prevented the appellant wife to come back to the matrimonial home. After considering the facts of the case and evidence adduced by the respondent no. 1, the learned appellate Court dismissed the suit against both the parents of the appellant and the said decision of the lower appellate Court has not been challenged by the respondent husband. No documentary evidence in the form of any letter addressed to the appellant was disclosed by the respondent no. 1, in support of his case in the plaint that either the appellant left the matrimonial home along with her parents on her own volition or that he was ever interested to get the appellant wife back in the matrimonial home. Further, none of the family members of the respondent no. 1 came forward to depose that the allegation of the appellant that she was tortured by her husband at the matrimonial home is untrue. The onus was on the respondent no. 1 to substantiate that the appellant left his residence on March 28, 2006 with her parents and he made any attempt to bring her back to the matrimonial home but from the evidence on record, as discussed above, it is evident that the respondent no. 1 has failed to discharge such onus.
Further, when the appellant in her written statement, examination-in-chief, the affidavit being Ext-"A" of the proceedings and cross-examination specifically asserted that she was granted talak-e-tafeeuz by the respondent no. 1 during the marriage ceremony at the marriage majlish on January 02, 2006 with the condition that in the event she does not maintain her fairly or ill-treats her, she would be entitled to grant him talak, the finding of the lower appellate Court that there is no mention of any date, time and place where the respondent husband had given the power of talak- e-tafeeuz and on what condition is patently perverse.
From the evidence of both the parties it was already proved on record that the appellant was residing with the respondent husband at his house along with his parents and other family members and that the parents of the appellant wife was not aware of the marriage between the parties until the appellant went back to them on March 28, 2006 and she did not leave the matrimonial home on her own volition. In her evidence, during cross-examination she fairly stated that during her stay at the matrimonial home, she did not tell her parents or any of her friends at the college nor lodged any complaint with police that she was being tortured by the respondent no. 1 both mutually and physically. Neither the parents nor the other family members of the respondent no. 1 came forward to adduce evidence on behalf of the respondent that the allegation of the appellant that he was physically or mentally tortured by the respondent is untrue.
From the afore-mentioned evidence on record, it is already established that the appellant did not leave the matrimonial home on March 28, 2006 on her own volition and the respondent no. 1 failed to prove that he ever visited the residence of the parents of the appellant to take her back at the matrimonial home or that parents of the appellant ever resisted the appellant to go back to her matrimonial home. In the affidavit sworn by the appellant, being Exhibit-"A", the appellant had categorically stated she was granted talak-e-tafeeuz by the respondent no. 1 at the time of their marriage on January 02, 2006 and in view of the respondent no. 1 had become a threat to her personal peace and security, she had granted talak to the respondent no. 1. The said affidavit sworn by the appellant on April 06, 2006 before the notary , being Exhibit - "A" of the proceeding, was forwarded to the respondent by registered post with acknowledgement due, but the postal authority had returned the envelope containing the said affidavit to the appellant with an endorsement "refused". The envelope and the acknowledgement due cards were also marked as Exhibits - "B" and "B-1" . In view of Section 27 of the General Clauses Act, 1897, the said affidavit sent to the respondent husband by registered post with acknowledgement due and returned by the postal authority with an endorsement "refused" the presumption is that the said affidavit (Ext.-"A") must be held to have been duly served on the respondent no. 1. Of course, such presumption was rebuttable by the respondent no. 1, but from the evidence on record it is evident that the respondent no. 1 could not rebut such presumption. In this regard reference may be made to the decision of the Supreme Court in the case of Gujrat Electricity Board and Anr. Vs. Atmaram Sungomal Poshani reported in AIR 1989 SC 1433. Thus, it would be appropriate to accept the evidence of the appellant wife that the respondent no. 1 being aware of the talak granted by her on April 05, 2006 on the ground of physical and mental torture inflicted upon by himself, did not receive the said affidavit sworn by the appellant recording the factum of talak granted by herself to him on the strength of the afore-mentioned talak-e-tafeeuz granted to her. Further, no question was put to the appellant during her cross-examination disputing the correctness of the contents of the said affidavit sworn by the appellant on April 06, 2004 being Exhibit "A" of the proceeding. From the evidence of the parties in the suit as a whole, it is evident that none of the findings of the learned lower appellate Court that the circumstances as projected by the appellant wife for leaving the house of the respondent no. 1 is not convincing at all or that no evidence is forthcoming to substantiate the claim of the appellant wife that she was tortured by the respondent no. 1 or she was driven out by the respondent no. 1 from his house or that the respondent husband is entitled to a decree for restitution of conjugal right against the appellant cannot support or sustained. It is well settled principle of law that where the decision of the learned Courts below, is vitiated or the decision of lower appellate Court either by non-consideration of the relevant evidence or by essentially erroneous approach to the matter, the High Court in second appeal is entitled to record proper finding and set aside the finding of the lower appellate Court. In this regard, reference may be made to the decisions of the Supreme Court in the case of Jagdish Singh vs. Nathu Singh reported in (1992) 1 SCC 647 = AIR 1992 SC 1604 and the case of Ramlal & Anr. (supra) cited by the Mr. De.
Although talak and divorce through the intervention of Court are two different modes of dissolution of marriage under the Mahomedan law but in the impugned judgment, the learned lower appellate Court fell into a patent error of law by passing the decree for restitution of conjugal rights in favour of the respondent no. 1 husband on the ground that the appellant wife has not filed a counter-claim in the suit for obtaining a decree for divorce against the respondent no. 1. Once again the impugned judgment of the learned lower appellate Court is vitiated perversity. It is settled law that findings of a Court can be held to be perverse when the findings are not supported by the evidence brought on record or they are against the law. In support of such view reference may be profitably made to the decision of the Supreme Court in the case of Gaya Din vs. Hanuman Prasad reported in (2001) 1 SCC 501 (para - 14).
For all the foregoing reasons, I find that the impugned judgment and decree passed by the learned lower appellate Court cannot be sustained. Accordingly, the second appeal stands allowed. The judgment and decree dated May 25, 2010 passed by the learned Additional District Judge, Jangipur in Title Appeal No. 14 of 2009 is set aside and the decree passed by the learned Civil Judge (Junior Division), 2nd Court, Jangipur is restored.
However, there will be no order as to costs.
Let the lower Court records be sent down forthwith.
Urgent certified photostat copy of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
{Ashis Kumar Chakraborty, J.]