Delhi District Court
Qamar Jahan vs Mursaleen on 8 July, 2010
IN THE COURT OF MS. SANGITA DHINGRA SEHGAL,
ADDITIONAL DISTRICT JUDGE, CENTRAL - 11,
TIS HAZARI COURTS, DELHI
SUIT NO. 623/08
Unique Case ID No. 02401C0428412006
Qamar Jahan,
D/o, Mohd. Ibrahim,
R/o, S-16, DDA Flats,
Turkman Gate, Delhi _____ Plaintiff
Vs.
Mursaleen,
S/o, Sh. Waheed,
R/o, House NO. 2187,
Kalyanpura,
Turkman Gate, Delhi _____ Defendant
Date of institution of the suit : 17.05.2006
Date on which order was reserved : 07.07.2010
Date of decision : 07.07.2010
JUDGMENT
Plaintiff Ms. Qamar Jahan has filed the present suit for recovery and damages of Rs.5 Lacs against the defendant Sh. Mursaleen on the averments that the parties to the suit were Suit no. 623/08 1/9 married on 20.1.95 as per Muslim law and the alleged Dower amount of Rs.50,000 was agreed upon; that the plaintiff was gifted jewelery, television, refrigerator, double bed and other household goods as per the list of dowry and Istridhan articles attached with the plaint; that a male child was born out of the wedlock and expenses of the delivery were borne by the father of the plaintiff; that plaintiff was thrown out from her matrimonial home by the defendant and his relatives after six months i.e. on 17.7.1995; that a complaint was lodged to CAW Cell which culminated into FIR no. 308/1995 of P.S. Chandni Mahal U/S 498A/406 IPC; that the entire Istridhan and the dower amount still remained in the custody of the defendant who is malafidely avoiding the delivery and payment of the same; that the brother of the plaintiff requested the defendant to return the Istridhan and the payment of the dower amount of Rs.50,000/-; that defendant has maliciously deprived the plaintiff of her Istridhan and other legitimate claim; that Plaintiff issued a legal notice to the defendant calling upon him to pay the Istridhan, dower amount and the amount incurred on delivery expenses; that defendant refused the same and hence the present suit; that it is prayed that a decree of damages being the cost of articles comprising of Istridhan and expenses incurred at the time Suit no. 623/08 2/9 marriage and at the delivery of the child be passed in favour of the plaintiff; that it is further prayed that a decree of Rs.50,000/- being the dower amount be passed in favour of the plaintiff and against the defendant.
While filing the written statement, the defendant took up a plea that the suit of the plaintiff is false, baseless, mischievous and concocted and has been filed with malafide intention and ulterior motive to extract money from him. It is further submitted that plaintiff has not approached the court with clean hands and the suit of the plaintiff is also without cause of action and liable to be dismissed.
Plaintiff filed his replication and reiterated the contents of the plaint.
On the pleadings of the parties following issue has been framed.
1) Whether the plaintiff is entitled to the decree of Rs.5 Lacs as prayed?OPP
2) Relief Plaintiff examined herself as PW1 and defendant examined Shri Abdul Wahab as DW1, Shri Nawabuddin as DW2 and himself as DW3.
My findings on the issues are as under.
Suit no. 623/08 3/9 ISSUE NO. 1 Whether the plaintiff is entitled to the decree of Rs.5 lakhs as prayed?OPP The onus of proving this issue was on the plaintiff who was examined as PW1 and deposed on the lines of the plaint. PW-1 deposed that she was married to defendant on 20.1.1995 as per Muslim rites and rituals and the agreed Dower was Rs. 50,000. The plaintiff further deposed that she was thrown out of her matrimonial home on 17.07.1995 and demanded the return of clothes and the articles but the defendant refused to return the same. In her cross examination PW-1 denied voluntarily leaving the matrimonial home and taking away the clothes and articles given at the time of the marriage.
On the other hand, defendant examined as DW-3 admitted the marriage and the Dower amount of Rs.50,000/- but deposed that the marriage was very simple and no Dowry was given by the plaintiff to the defendant or his parents and only customary articles were exchanged. The defendant added that the marriage was dissolved between the parties through a written Talaknama dated 7.01.1996 and the Dower amount of Rs.50,000 was returned to the plaintiff in the presence of Sh. Ajmeri. He further deposed that the Suit no. 623/08 4/9 father of the plaintiff took away all the belongings of the plaintiff on 10.01.1996. The defendant denied that a legal notice had been served upon him and stated that the suit of the plaintiff was false and baseless and filed only with a view to harass him. He raised a legal contention that the suit was not maintainable being barred by the Limitation and the provisions of Muslim law.
Section 3 of the Indian Limitation Act, 1908 is as under:
"Dismissal of suits, etc, instituted after period of limitation: Subject to the provisions contained in Section 4 to 25 every suit instituted, appeal preferred and application made, after the period of limitation prescribed therefore by the first schedule shall be dismissed, although limitation has not been set up as a defence."
The present suit is for the recovery of the expenses incurred at the time of the marriage of Rs.1,75,000/- by the plaintiff. The parties in the present suit were married on 20.01.1995 and were divorced on 7.01.1996 through a written Talaknama. Even otherwise the plaintiff has admitted in her cross examination that she got married to one Aas Mohd. and had three children from which it is clear that she had the knowledge of divorce, only then she got Suit no. 623/08 5/9 remarried. It is a settled law that a suit for recovery shall lie within 3 years from the date of cause of action. Therefore the period of limitation starts running from 7.01.1996, but the suit was filed on 17.5.2006 much beyond the period of limitation.
The suit is also for the recovery of Rs. 25,000/- for the expenses incurred at the time of delivery of the child born out of the wedlock on 26.12.1995. The plaintiff has taken up a plea that a legal demand notice dated 20.09.2005 was sent to the defendant and the limitation would run from the date of legal demand notice. The plaintiff failed to prove that the legal notice has been served on the defendant. The limitation of three years starts running from 7.1.1996 and the alleged demand notice could not start a fresh period of limitation from 30.9.2005 and the same is beyond limitation.
Schedule I Articles 103 of the Indian Limitation Act, 1908 deals with the period of limitation for claim of dower amount, which reads as under:-
"When the dower is demanded and refused or (where during the continuance of the marriage no such demand has been made) when the marriage is dissolved by death or divorce, the period of limitation is three years from the date when the Suit no. 623/08 6/9 marriage is dissolved by the death or divorce (ibid, Art. 104) where however prompt Dower has not been fixed a demand and refusal is not a condition precedent for filing a suit for its recovery
(h) ."
The Dower amount of Rs.50,000/- was fixed at the time of marriage and limitation starts running from the date when the marriage was dissolved. It is proved on record that plaintiff was divorced by the defendant on 7.01.1996, therefore the Dower amount could only be recovered within three years from the date of divorce. DW-3, Abdul Wahab deposed that he personally went to the house of plaintiff to deliver her the original talaknama and the said Dower amount of Rs. 50,000 in cash, which fact remains unrebutted as the witnesses has not been cross-examined.
Applying the settled provisions of law, I am of the considered opinion that the suit for recovery of dower amount should have been filed within three years from the date when the marriage stood dissolved.
The suit of the plaintiff on account of recovery of Rs.1,75,000/-, Rs.25,000/- and Rs.50,000/- is barred by law of limitation and thus fails. It is, therefore, held that the plaintiff is not Suit no. 623/08 7/9 entitled to the claim of Rs.5,00,000/- and the above issue is decided against her.
Relief In view of the above discussion, suit of the plaintiff fails and the same is accordingly dismissed. Ordered accordingly. No order to cost. Decree sheet be prepared accordingly. File be consigned to the records.
Announced in the SANGITA DHINGRA SEHGAL open Court on 7.7.2010 ADDL. DISTT. JUDGE, DELHI Suit no. 623/08 8/9 Suit no. 623/08 Qumar Jahan Vs. Mursaleen 7.7.2010 Present: Proxy counsel for parties.
Vide separate detailed order, suit of the plaintiff is dismissed. Ordered accordingly. No order to cost. Decree sheet be prepared accordingly. File be consigned to the records.
ADJ/Delhi/7.7.2010 Suit no. 623/08 9/9