Jammu & Kashmir High Court
Billo vs Mohd. Iqbal on 24 August, 2023
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
Sr. No. 13
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CFA No. 19/2011
Billo .....Petitioner(s)
Through: Mr. H C Jalmeria, Advocate
Vs
Mohd. Iqbal ..... Respondent(s)
Through: None
Coram: HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE
ORDER
24.08.2023
1. This appeal has been filed against the judgment and decree dated 11.06.2011 passed by the court of learned Additional District Judge, Rajouri in case titled "Mst. Billo vs. Mohd. Iqbal" whereby suit of the appellant for recovery of Rs. 2,10,700/- on account of dower and value of items of dowry has been dismissed.
2. The impugned judgment/decree has been challenged precisely on the grounds that:
i. the judgment impugned is neither based on proper appreciation of evidence nor on correctly applying the law on the subject. The human and social angles of the atrocities and deprivations meted out to the Plaintiff /Appellant have also been ignored; ii. the Plaintiff had entered into marriage(Nikah) with the respondent and it was also admitted by the defendant that 2 CFA No. 19/2011 marriage was performed between the parties and thereafter they lived together for over 15years. They had four children out of the wedlock. There was no occasion or stage for the Defendant/Respondent to divorce the appellant and throw her out from the matrimonial house. However, the amount of deferred dower (Rs 1, 10,000) was not paid to the plaintiff besides the items worth Rs. 1,07,000/- of the Dowry were retained and used by the Respondent. This fact has also been proved by the plaintiff beyond any reasonable doubt; iii. in view of the contentions of the Plaintiff and evidence on record in support, it was incumbent upon the court below to allow the suit and pass decree in favour of the plaintiff; iv. the plaintiff witnesses have clearly stated that Dawar (Haq Mahar) amount was fixed as Rupees 1, 25, 000(one lac twenty five thousands). Rs. 15,000- was treated as prompt for jewellary and that amount was deleted from the total. Remaining amount of Rs. 1,10,000 was to be paid by the defendant as Deferred Dawar. The court below, by disbelieving the plaintiff witnesses, has done injustice with the already maltreated appellant;
v. the Nikahnama was written by one Sadiq Ahmed. This has been approved by all the plaintiff witnesses. Ibrahim Moulvi was illiterate not knowing urdu, could not write. The court below has observed that name of Sadiq did not appear on the Nikahnama. It could not because he simply scribed and did not perform the Nikah. Thus name of Ibrahim as Moulvi appears on the Nikahnama;
vi. the Court below has completely disregarded the claim of he plaintiff for the value of the items of dowry despite the fact having been proved by the plaintiff. The fact that the defendant visited Soudi Arabia has been admitted by him. He went there after 15 years of marriage and after selling the many items of dowry. The hope was that he would earn there and life of family 3 CFA No. 19/2011 would become better. But as admitted by the defendant, he sent paper of divorce from Soudi Arabia by registered post through his father to the plaintiff. He was in Saudi Arabia, how can it be presumed that he entered into settlement with the plaintiff before giving divorce. The Court below has based his judgment and decree on assumptions and presumptions and not based upon truth. The same cannot stand the test of law and is thus liable to be set aside;
vii. the right of the plaintiff to her belongings particularly given to her by her parents, cannot be appropriated by the defendant particularly after divorce. The height of irony is that her three children also have been snatched from her.
3. Briefly stating the facts of the case as put forth by the appellant before the trial court are that she was married to defendant/respondent herein in terms of nikahnama dated 15.03.1988 and out of the said wedlock, four children were born; the respondent at the time of marriage was a poor man and after marriage, he sold her jewellery for an amount of Rs. 36,600/- and a cattle for an amount of Rs. 24,000/- which she had brought as dowry with her at the time of marriage, the respondent had collected an amount of Rs. 45,600/- from sales of these items and went to Saudi Arab and earned a lot of money over there, when defendant earned money, he started neglecting her and she was turned out of her matrimonial house by the parents of the respondent who also snatched her three children since January 2002, she is residing with her parents; that on 18.01.2002, respondent sent a letter to her whereby she has been divorced; at the time of marriage dower in the amount of Rs. 1,20,000/- was fixed, out of which the respondent had 4 CFA No. 19/2011 paid an amount of Rs. 15,000/- whereas an amount of Rs. 1,00,000/- has not been paid; that at the time of marriage, bed valuing Rs. 4000/-, bedding valuing Rs. 4000/-, four tables valuing Rs. 2000/-, expenses valuing Rs. 9000/-, dining table valuing Rs. 1600/-, utensils valuing Rs. 10,000/-, charkha valuing Rs. 1500/-, television valuing Rs. 2500/- ,sewing machine valuing Rs. 2000/-, cattle valuing Rs. 24000/-, chicken valuing Rs. 2000/- & jewellery valuing Rs. 21,600/- as dowry were given by her parents; the jewellery and cattle were sold by the respondent and the value thereof which is payable by him to her is Rs. 2,10,700/- in all; the respondent has contested the suit by filing his written statement wherein he has admitted his relationship with plaintiff; according to him, out of his wed lock with appellant, three children were born who are presently living with him but the appellant has given birth to 4th illegitimate child, as a result of which, he has divorced her; that no written document in respect of their marriage was prepared and the Nikahnama placed on record by the appellant is forged; after the divorce, respondent had paid all his dues to her and a receipt in this regard has been executed by her.
4. Since there is no representation on behalf of the respondent, the matter is heard in his absence.
5. The trial court on the basis of pleadings of the parties had framed following issues:
a. Whether at the time of nikha of the parties Rs. 15,000/- as prompt dower and Rs. 1,10,000/- as deferred dower was fixed on 15.03.1988; OPP 5 CFA No. 19/2011 b. Whether at the time of dissolution of marriage defendant did not pay the plaintiff the amount of dower so fixed; OPP c. In case issues No. 1 & 2 are proved in affirmative to what relief plaintiff is entitled to. OPP
6. Before coming to any conclusion, it will be appropriate to give a brief resume of the evidence as well as the findings available on record, on which the issues framed were decided before the trial court.
7. The appellant besides examining herself as a witness, had examined PWs Madha, Salam Din and Gh. Hussain as witnesses in support of her case whereas respondent in support of his case besides examining himself had examined DW Haji Ibrahim as witness in support of his case.
8. As per the case of plaintiff an amount of Rs. 1,20,000/- was fixed as dower at the time of her marriage with defendant, out of which Rs. 15000/- was paid by defendant to her whereas an amount of Rs. 1,10,000/- is payable by defendant to her.
Plaintiff in her statement has deposed that at the time of marriage an amount of Rs. 15000/- was fixed as prompt dower, whereas an amount of Rs.1,10,000/. was fixed as deferred dower. That at the tune of her divorce by defendant he did not pay him any amount of dower nor the articles of dowry were returned to her.
In her cross-examination she has stated that nikah was performed by Moulvi Ibrahim. That nikah was performed orally and there was no written document. She denied the suggestion that she has received the amount of dower from defendant.
6 CFA No. 19/2011
PW Madha in his statement deposed that marriage between the parties took place in the year 1988 and he was present in that marriage. That an amount of Rs. 1,20,000/- was fixed as dower, out of which an amount of Rs. 15000/- was given up and balance amount of Rs. 1,10000/- was fixed as the dower. He is not aware as to whether amount of dower has been paid or not, but the same was written in the nikahnama. That at the time of divorce the amount fixed as dower was paid by defendant to plaintiff. That dowry was also given at the time of marriage but he is not aware whether the same has been returned by defendant to plaintiff or not.
In his cross-examination he stated that an amount of Rs. 1,10,000/- was fixed as dower .He admitted the suggestion that if prompt dower is not paid the marriage becomes illegal. That he does not know how much dower is prompt and how much of it was deferred .That defendant sent a letter of divorce to plaintiff from Saudi Arab .That he cannot tell whether amount of dower was paid by defendant to plaintiff at the time of divorce.
PW Salam Din in his statement deposed that plaintiff is his daughter and she was married to defendant in the year 1988.That a nikahnama was prepared. That an amount of 1,25000/- was fixed as dower ,out of which an amount of Rs. 15000/- was paid by defendant .whereas an amount of Rs. 1,10000/- was payable by him. That nikah was performed by Moulvi Ibrahim .That besides him Abdul Rehman, Ghulam Hussain and Ahmed Din were witnesses to the nikah. At the 7 CFA No. 19/2011 time of nikah PW Madha was also present over there. That nikahnama EXP-SD was prepared .That he has given dowry valuing Rs.1,00,700/- to his daughter .That about six years back defendant had divorced plaintiff and at the time of divorce he did not pay the amount of dower-to her.
In his cross examination he stated that he does not remember as to whether dower in respect of any other girl was fixed at Rs. 2 lacs in the year 1988. He denied the suggestion that nikah was performed orally and that no nikahnama was prepared. He denied the suggestion that dower was fixed at Rs.10000/-.
PW Ghulam Hiissain in his statement deposed that parties entered into wed-lock in the year 1988 and he was present in that marriage. That he was witness to the marriage. That he put his thumb impression on nikahnama as its witness. That at the time of marriage prompt dower of Rs. 15000/- and deferred dower of Rs. 1,10000/- was fixed. That in his presence defendant did not pay any amount of dower to the plaintiff.
In his cross-examination he stated that he does not remember in how many marriages he participated in the year 1988. He also does not remember what was the amount of dower fixed in these marriages. That nikah was performed by Moulvi Ibrahim and it was oral and no written document was prepared. The witness thereafter stated that nikahnama was prepared by Moulvi Sadiq on the same day.
8 CFA No. 19/2011
Defendant in his statement deposed that his marriage with plaintiff took place in the year 1985 and the marriage was performed by Moulvi Ibrahim .That an amount of Rs. 10000/- was fixed as dower and it was an oral nikah. That in the year 1994 he went to Saudi Arab and after his departure, a daughter was born to plaintiff. That upon hearing it, he divorced plaintiff. That it was decided that besides an amount of Rs. 10,000/-as dower, a further amount of Rs. 5000/- shall be paid to plaintiff, which he did. That he paid an amount of Rs. 15000/- to plaintiff and nothing remains payable by him.
In his cross examination he stated that he had sent the Talak through registered post and he sent that letter to his father. That he sent an amount of Rs. 15000/- from Saudi Arab to his father and the same was given by his father to Moulvi Sadiq, who in turn, paid it to plaintiff. That only one Moulvi is associated with marriage.
DW Haji Ibrahim on special oath stated that he knows the parties. That their nikah was performed by him orally. That at that time there was a dispute about the amount of dower between the parents of the parties. That he resolved that dispute by fixing the amount of dower as Rs. 10000/-. That prior to this marriage, he had fixed an amount of Rs. 7000/- as dower in respect of the marriage of plaintiffs' sister. That whenever he prepares a written nikahnama, he affixes his signature and seal on it. That as per his opinion nikahnama EXP-SD is forged.
9 CFA No. 19/2011
In his cross-examination he denied the suggestion that in connivance with defendant he is deposing falsehood. He also denied the suggestion that an amount of Rs. 1,25000/- was fixed as dower between the parties out of which an amount of Rs.15000/- was prompt and an amount of Rs. 1,10000/- was deferred dower. That he cannot write Urdu. That nikahnama prepared by him are being drafted by his son Mohd. Bashir .That now he has left this job. That Moulvi Sadiq he is Mouivi of village Draj. He denied the suggestion that during the period in question; his son in law accompanied him at the time of nikah. He denied the suggestion that nikahnama EXP-SD was prepared by him through his son in law.
9. The trial court while deciding the issues held as under:
Issue No. 1: From the evidence led by plaintiff, the assertion that dower fixed in this case was Rs. 1,25,000/- out of which Rs. 15000/- was prompt and Rs. 1,00,000/- was deferred dower, is not established, whereas the assertion of defendant that dower fixed at the time of marriage of parties was Rs. 10,000/- is established from the evidence led by him. Issue no. 1, therefore, is not proved and is accordingly decided in favour of defendant and against the plaintiff.
Issue No. 2: As already held while deciding Issue No. 1, the dower fixed between the parties were Rs. 10000/- and not Rs. 1,25,000/- as has been claimed by the plaintiff. In her plaint, she has admitted that she has received an amount of Rs. 15000/- as dower from defendant and defendant in his statement has deposed that besides the dower of Rs. 10,00/- he had paid an amount of Rs. 5000/- as per mutual decision, at the time of divorce. In these circumstances, it is established that defendant has paid the amount of dower that was fixed to the plaintiff and nothing remains payable by him to plaintiff.10 CFA No. 19/2011
The assertion of plaintiff that an amount of Rs. 1,10,000/- is payable to her by defendant, becomes irrelevant for the reason that she has failed to establish that dower fixed at the time of marriage was Rs. 1,25,000/- and therefore, Issue No. 2 is not proved and it is accordingly decided in favour of defendant and against the plaintiff.
Issue No. 3: Since, issues No. 1 & 2 are not proved, therefore, plaintiff is not entitled to any relief. No issue with regard to claim of plaintiff relating to recovery of value of items of dowry has been framed in this case and it appears that plaintiff has not presses the said issue or else he would have certainly sought amendment of issues. The claim of the plaintiff in this regard is deemed to have been given up by her, in these circumstances.
10. Perusal of the record reveals that the main document on which the appellant herein is relying to prove her assertions that the dower fixed at the time of marriage with the respondent was Rs. 1,25,000/-, is the nikahnama and PW Gh. Hussain has stated that he has affixed his thumb impression on nikahnama wherein an amount of Rs15,000/- was fixed as prompt dower and an amount of Rs. 1,10,000/- was fixed as deferred dower, however, in his cross examination he has stated that nikah was performed orally and there was no written document. He further stated that the said nikahnama was prepared by Moulvi Sadiq whereas the name of said Moulvi is not mentioned anywhere in the said nikahnama. Record of the case would further reveal that DW Moulvi Mohd. Ibrahim was at the instance of the plaintiff administered special oath at the time his statement was recorded and he has categorically stated that the nikahnama is forged one and does not bear his seal and signature. The statement of the said witness 11 CFA No. 19/2011 having been recorded after administering special oath at the instance of plaintiff, therefore his statement is binding upon her.
11. The claim of the plaintiff/appellant is based upon Nikahnama but the Moulvi Mohd. Ibrahim has stated that Nikahnama was not written, he further says that the Nikahnama does not bear his signature and seal and is forged one. This witness has thus established that Nikahnama as alleged by plaintiff was not executed thus, her claim on the basis of said Nikahnama fails. Her witnesses have also given contradictory statements.
12. Thus, there is contradiction in the statements of the witnesses.
Therefore, the trial court after going through the record as well as the evidence has rightly held that the appellant has failed to establish her claim. The impugned order passed by the trial court does not require any interference from this Court.
13. Accordingly, the instant appeal is dismissed along with connected application(s), if any.
( Vinod Chatterji Koul ) Judge Jammu 24.08.2023 Manan