Bombay High Court
Saida Parveen W/O Rizwan Ahmad Abbas vs Rizwan Ahmad Abbas on 5 December, 2019
Author: Z.A. Haq
Bench: Z.A. Haq, S. M. Modak
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
FAMILY COURT APPEAL NO.22/2019
Saida Parveen W/o Rizwan Ahmad Abbas,
aged about 35 Yrs., Occu. Housewife,
R/o C/o Shadab Khan, Railway Quarter
No.176/1, Mount Road, Civil Lines,
Nagpur. ..Appellant.
..V/s..
Rizwan Ahmad Abbas,
aged about 46 Yrs., Occu. Business,
R/o Pipla (D.B.) in front of Bawankar
Saw Mill, Saoner Road, Secret Hat
School, Nagpur. ..Respondent.
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Shri S.Z. Qazi, Advocate for the appellant.
Shri E.N. Qazi, Advocate for the respondent.
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CORAM : Z.A. HAQ AND
S. M. MODAK, JJ.
DATE : 5.12.2019.
ORAL JUDGMENT (Per Z.A. Haq, J.)
1] Heard.
2] ADMIT.
3] While issuing notice, by order dated 29 th April 2019, this Court had
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expressed that notice be issued to respondent for final disposal of appeal. Order for calling record and proceedings was also passed. Record and proceedings are received. Hence, appeal is taken up for hearing. 4] This a peculiar case reflecting the exploitation of women in the society, even by husband.
5] Undisputed facts are:
The respondent was married with Shagufta Parveen. During the subsistence of this marriage, the respondent married present appellant Saida Parveen on 16th January, 2016. As per Nikahnama, Mehr [dower] payable by the respondent to appellant was agreed at Rs.50,00,000/- (Rs. Fifty Lakhs). The respondent claims that the amount of Mehr (dower) was payable in kind i.e. in the form of two storied building admeasuring 1395 Sq. Ft. The appellant gave birth to a male child namely Asad Ahmad on 15th October, 2016. As first wife of respondent started residing in the same house, the appellant was not given proper treatment by the respondent, which compelled her to leave the house of respondent, and appellant started residing with her parents. On 15th March 2017, the appellant issued notice to the respondent calling upon the respondent to pay the amount of Mehr (dower). The respondent failed to give reply to the notice. The appellant filed petition before the Family Court praying for directions to the respondent to pay the amount of Rs.50,00,000/- ::: Uploaded on - 08/01/2020 ::: Downloaded on - 25/04/2020 13:58:28 :::
3 fca22.19 (Rs. Fifty Lakhs) or in the alternative double storied building worth Rs.50,00,000/- (Rs. Fifty Lakhs) be given to the petitioner towards Mehr (dower). This petition is decided by the impugned judgment, ex parte against the respondent. Though respondent had not appeared, Family Court has dismissed the petition filed by the appellant. Hence, this appeal. 6] According to the respondent, he was not served with notice of the petition and, therefore, there was no occasion for him to appear in the proceedings. In this appeal, the respondent has filed reply stating that the title of two storied building was transferred in favour of the appellant by sale-deed dated 13th January, 2016 executed by Shagufta Parveen (first wife of respondent). According to the respondent, this property was given to appellant for discharging the liability of payment of Mehr (dower) as Shagufta Parveen had executed the sale-deed on say of the respondent. In reply filed before this Court, the respondent has stated that the appellant made a "solemn declaration" which is notarized on 13 th January, 2016 and has transferred the above property in favour of the respondent and in this document (solemn declaration) appellant has stated that in future the appellant will not have any right to demand Mehr (dower). It is submitted that as the respondent was not aware about the filing of petition by the appellant, he could not appear and point out all these facts to the Court. It is prayed on behalf of the respondent that if at all the Court finds that the judgment passed by the Family Court is not ::: Uploaded on - 08/01/2020 ::: Downloaded on - 25/04/2020 13:58:28 ::: 4 fca22.19 sustainable in law, then the matter be remanded to the Family Court granting an opportunity to the respondent to put-forth his defence before the Family Court.
7] Learned Advocate for the appellant has made various submissions. It is submitted that the respondent has given divorce to appellant in December, 2016 and the facts show that right from the beginning, the respondent intended to give Talaq to appellant and, therefore, as per Chapter IV Verse 19 to 21 of the Holy Quran there is prohibition for taking back Mehr (dower) if husband intends to replace a wife by another and wealth is given to one of them. It is argued that the learned trial Judge has completely overlooked the relevant Principles of Mahomedan Law in Chapter XV and Clause 291 of Principles of Mahomedan Law. It is pointed out that in proceedings filed by the appellant under Section 12 of the Protection of Women from Domestic Violence Act 2005, the respondent has filed his reply / written statement and in the specific submissions, the respondent has stated that due to pressure from society, the appellant returned back the property to the respondent. It is submitted that the remission of Mehr (dower) by wife should be made with free consent and in the present case, even according to the respondent, the document styled as "solemn declaration" was not executed by her of her free will.
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5 fca22.19 8] After considering the rival submissions, in our view, following points arise for consideration:
(i) Whether the judgment passed by the Family Court dismissing the claim of appellant for directions to pay amount of Mehr (dower) is proper and sustainable in law?
(ii) If no, then, whether the matter should be remanded to the Family Court to give an opportunity to the respondent to put-forth his defence and prove it, as requested on behalf of the respondent?
9] Learned trial Judge has dismissed the petition filed by the appellant recording that at the time of filing of the petition the appellant was a legally wedded wife of respondent and was not a divorcee and, therefore, petition under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 was not maintainable. Learned trial Judge further recorded that Nikahnama only showed that respondent had agreed to pay Mehr (dower) amounting to Rs.50,00,000/- (Rs. Fifty Lakhs) and it was not mentioned in the Nikahnama as to when Mehr (dower) was payable. Learned trial Judge recorded that as the appellant continued to be legally wedded wife of respondent and was not a divorcee such proceedings for recovery of amount were not maintainable.
10] To say the least, the reasons recorded by learned trial Judge for dismissing the petition filed by the appellant not only reflect ignorance of law on the part of the learned trial Judge but also shows callous approach. Even ::: Uploaded on - 08/01/2020 ::: Downloaded on - 25/04/2020 13:58:28 ::: 6 fca22.19 learned Advocate representing the respondent has expressed his inability to support the reasons given by the learned trial Judge for dismissing the petition filed by the appellant.
11] Clause 290 of the Principles of Mahomedan Law describes two categories of Mehr (dower). One being 'Prompt Dower (Mehr-e-Mu_ajjal)' and other being 'Deferred Dower (Mehr-e-Mu_vajjal)'. Copy of Nikahnama was placed on record before the trial Court. In paragraph No.5 of the petition, which was filed by the appellant before the trial Court, the appellant pleaded that as per the Principles of Mahomedan Law she had right to get the amount of Mehr (dower) as per the agreement between the parties at the time of marriage. Overlooking the pleadings and Chapter XV of the Principles of Mahomedan Law, the trial Judge has dismissed the petition on the ground that it was not maintainable as the appellant was legally wedded wife and not divorcee and, therefore, petition under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 is not maintainable. Again the non-application of mind is patent on record. Petition which was filed by the appellant before the trial Court did not refer to any provision under which it was filed. Learned trial Judge has overlooked the provisions of Section 7(1) Explanation (c) of the Family Courts Act, 1984 which confers jurisdiction on the Family Court to entertain and decide suits and proceedings between the parties to a marriage, with respect to the property of the parties or of either of them. There cannot be a dispute that the amount of Mehr (dower) receivable ::: Uploaded on - 08/01/2020 ::: Downloaded on - 25/04/2020 13:58:28 ::: 7 fca22.19 by wife as per the agreement between the parties at the time of marriage will fall within the meaning of term " property" contemplated by Explanation (c) of Sub-Section (1) of Section 7 of the Family Courts Act, 1984. Another blunder committed by learned trial Judge is that she failed to frame any point regarding jurisdiction of Family Court for adjudication which prejudiced the appellant and deprived her of the opportunity of pointing out that her claim was maintainable before the Family Court.
12] In the reply filed by the respondent before this Court, he has admitted that as per the agreement between the appellant and respondent at the time of marriage he had agreed to give two storied house property admeasuring 1395 Sq. Ft. worth Rs.50,00,000/- (Rs. Fifty Lakhs) to the appellant, the kind of Mehr (dower) being 'Prompt Dower (Mehr-e-Mu_ajjal)'. As per Clause 290 of the Principles of Mahomedan Law, the 'Prompt Dower (Mehr-e-Mu_ajjal)' is payable on demand. The appellant had sent notice dated 15th March, 2017 through her Advocate by speed post acknowledgment due demanding Mehr (dower). The appellant has produced on record the postal receipts which show that the notice was served on the respondent. In the reply filed by the respondent before this Court, receipt of notice dated 15 th March, 2017 is not specifically denied by the respondent. Thus, in our view, the appellant has proved that she demanded the amount of Mehr (dower) from the respondent.
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8 fca22.19 In the above facts and in view of the Principles of Mahomedan Law discussed above and as we find that the petition filed by the appellant before the Family Court was maintainable, we hold that the judgment delivered by learned trial Judge is unsustainable and has to be set aside. 13] Now, the point which requires consideration is whether the matter should be remanded to the trial Court, to grant an opportunity to the respondent to put-forth his defence, or the claim of the appellant should be considered on merits.
14] In the reply filed by the respondent before this Court, he has come up with the case that the Mehr (dower) was paid to the appellant on 13 th January, 2016 by executing the sale-deed of two storied building in her favour. Copy of sale-deed is also placed on record by the respondent. Perusal of copy of sale-deed shows that it was executed by Shagufta Parveen (first wife of respondent). Though now the respondent claims that the sale-deed of two storied building was executed by Shagufta Parveen in favour of the appellant on the say of the respondent to discharge the liability of the respondent of paying the amount of Mehr (dower), the defence per se cannot be accepted as according to the Principles of Mahomedan Law, Mehr (dower) becomes payable by the husband, and wife gets right to demand Mehr (dower), only after Nikah is performed. At the time of Nikah, the girl (proposed wife) offers ::: Uploaded on - 08/01/2020 ::: Downloaded on - 25/04/2020 13:58:28 ::: 9 fca22.19 herself in Nikah to the boy (proposed husband) through Wali (guardian or nominated guardian) and then the proposal given by the girl is put to the boy (bride-groom) and after the boy (bride-groom) accepts the proposal, Nikah is said to be complete and then the liability to pay Mehr (dower) falls on the husband and wife gets the right to demand Mehr (dower). As per Clause 289A of the Principles of Mahomedan Law, Mehr (dower) becomes confirmed on consummation of the marriage or by a valid retirement or by the death of either the husband or wife.
Considering the above Principles of Mahomedan Law, the defence now taken by the respondent cannot be accepted inasmuch as the two storied building, which was transferred in the name of the appellant, was owned by Shagufta Parveen and not by the respondent. The sale-deed dated 13 th January, 2016 executed by Shagufta Parveen in favour of the appellant does not refer to the fact that it was executed in lieu of liability of Mehr (dower). There is nothing in the Principles of Mahomedan Law to show that the liability to pay Mehr (dower) had arisen before 16th January, 2016 on which date the marriage between appellant and respondent was solemnized.
Apart from this, we find the document styled as "solemn declaration", suspicious. The sentence "in the future, I have no right of Mehr"
appears to be inserted in between two paragraphs which deals with the description of the two storied building, and the giving up of her right in that two storied building by the appellant. Surprisingly there is no witness to the ::: Uploaded on - 08/01/2020 ::: Downloaded on - 25/04/2020 13:58:28 :::
10 fca22.19 execution of this document styled as "solemn declaration". 15] In normal course, in such circumstances, when the trial Court has proceeded ex parte against the defendant / respondent, and the suit / petition filed by the plaintiff / petitioner is dismissed on technical ground, remand to the trial Court for fresh consideration is the normal rule. However, in the present case, we are deviating from the normal rule. Notice of the petition filed before the Family Court was sent to the respondent by registered post acknowledgment due. The envelope in which notice was sent to the respondent shows that it was returned with endorsement that noticee refused to accept it. Hence, Family Court proceeded ex parte against the respondent. From the record it is not clear whether notice was sent to the respondent through Bailiff. Learned Advocate for the appellant submitted that as per Order V Rule 9 Sub-Rule (3) of the Code of Civil Procedure, service of summons by registered post acknowledgment due is permitted. 16] In the above facts and as we find that the defence raised by the respondent in the reply filed by him before this Court cannot be accepted in view of the provisions of Principles of Mahomedan Law, no fruitful purpose would be served by remanding the matter and adding to the hardships of the appellant, who is now divorced, and consequently, it may affect the minor child also. We find that the claim of the appellant for Mehr (dower) is based ::: Uploaded on - 08/01/2020 ::: Downloaded on - 25/04/2020 13:58:28 ::: 11 fca22.19 on documentary evidence i.e. Nikahnama and it is not denied by the respondent and as we are not convinced with the defence raised by the respondent, we hold that the appellant is entitled for decree.
17] Hence, the following order: (i) The judgment passed by the Family Court in Petition No.B-24/2017 on 6th December, 2018 is set aside. (ii) Petition No.B-24/2017 filed by the appellant is allowed. (iii) The respondent is directed to pay the amount of Mehr (dower) in
kind i.e. in the form of two storied building worth Rs.50,00,000/- (Rs. Fifty Lakhs) or in the alternative to pay the amount of Rs.50,00,000/- (Rs. Fifty Lakhs) to the appellant.
(iv) The respondent shall comply with the above directions within three months.
(v) The appeal is allowed accordingly.
(vi) In the circumstances, the parties to bear their own costs.
JUDGE JUDGE
Tambaskar.
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