Delhi District Court
Smt. Firdos Jehan vs Sh. Mohd. Sufiyan Faridi on 12 November, 2013
IN THE COURT OF Ms. SHUCHI LALER, ADMINISTRATIVE
CIVIL JUDGE CUM ADDITIONAL RENT CONTROLLER
(NORTH-EAST), KARKARDOOMA COURTS, DELHI.
Suit No. : 71/12
Unique Case ID No. : 02402C0066402012
In the matter of :
Smt. Firdos Jehan
W/o Sh. Mohd. Sufiyan Faridi,
D/o Late Yaqub Ali,
R/o H. No. E-249, Gali No. 2,
Near Madina Masjid,
20' Road, Chand Bagh,
Bhajanpura,
Delhi - 110 094. ......Plaintiff
Versus
Sh. Mohd. Sufiyan Faridi
S/o Sh. M.S. Faridi,
R/o H. No. 56, Sogiawada,
Kasba Sikandrabad,
District Bulandshahar,
U.P. .......Defendant
Date of Institution of the suit : 03.03.2012
Date on which order was reserved : 21.10.2013
Date of order : 12.11.2013
JUDGMENT:
1. Vide this judgment I shall decide a suit for dissolution of marriage under Muslim Law filed by the plaintiff.
2. In brief, the facts as disclosed in the plaint, are as under: -
Suit No. 71/12 Page 1 of 13 pages The marriage between the parties was solemnized on 17.10.2008 as per Islamic Law and Rites. The plaintiff has alleged that the defendant and his family members treated her with cruelty during her pregnancy due to which the child died in her womb. The plaintiff was compelled to go to her parental home on 20.10.2009 and since then, the plaintiff has been residing at her parental home. It has been alleged that the defendant has been demanding Rs. 5 lakhs as dowry from the plaintiff and has not paid any maintenance to the plaintiff. The plaintiff has further alleged that the defendant has caused physical as well as mental harassment to her so the plaintiff is entitled to "Khula" i.e. divorce by the plaintiff from the defendant with the intervention of this court. Hence, the present suit.
3. The defendant has contested the present suit by filing written statement, wherein he has taken the preliminary objections such as the plaintiff has no valid ground to file the divorce petition as the defendant has already obtained a decree for conjugal rights from the court of Bulandsahar, U.P, and there is no cause of action in favour of the plaintiff. It has been denied that the defendant and his family members treated the plaintiff with cruelty. The defendant has averred that he gave full love, affection and respect to the plaintiff and the plaintiff left the matrimonial Suit No. 71/12 Page 2 of 13 pages home at the instance of her mother and brother. The defendant has also stated that he has paid maintenance to the plaintiff whenever she demanded and the defendant requested the plaintiff many times to join his company but the plaintiff refused. It has been denied that the defendant demanded a sum of Rs. 5,00,000/- from the plaintiff or from her parents. The defendant has alleged that the plaintiff has withdrawn herself from the society of the defendant without any reasonable and cogent reasons. The defendant prayed for the dismissal of the present suit subject to cost.
4. Replication to the written statement of defendant has been filed by the Plaintiff, wherein allegations to the contrary have been controverted and the averments made in the plaint have been reiterated to be true and correct.
5. Vide order dated 11/12/2012, the Ld. Predecessor Judge was pleased to frame the following issues: -
(i) Whether plaintiff is entitled for a decree of dissolution of marriage as prayed for ? OPP.
(ii) Whether suit of the plaintiff is barred in as much as a decree for restitution of conjugal right has been passed from the competent court at Bulandsahar, U.P. ? OPD.
(iii) Whether suit is without any cause of action? OPD.
Suit No. 71/12 Page 3 of 13 pages (iv) Relief.
6. In support of her case, the plaintiff has examined herself as PW-1 and tendered her evidence by way of affidavit, which is Ex. PW-1/A. The plaintiff has relied upon the documents, such as receipt of nikahnama Ex.PW1/1, copy of ration card Ex.PW1/2, copy of PAN card Ex.PW1/3.
PW-1 has been subjected to lengthy cross examination by the Ld. Counsel for the defendant. Thereafter, the plaintiff closed her evidence.
7. In rebuttal, the defendant stepped into the witness box as DW-1 and tendered his evidence by way of affidavit, which is Ex. D1. Defendant has relied upon the the documents i.e certified copy of judgment dated 23.02.2012 Ex.DW1/1, certified copy of statement recorded in Bulandshahar Court Ex.DW1/2, reply of notice dated 13.04.2010 Ex.PW1/D.1. The defendant has been duly cross examined by the Ld. Counsel for the plaintiff. Thereafter, the defendant evidence was closed.
8. I have heard the Ld. Counsels for parties and perused the record with their assistance.
9. My issue-wise findings are as under: -
Issue No. (i) :- Whether plaintiff is entitled for a decree of dissolution of marriage as prayed for ? OPP.
Suit No. 71/12 Page 4 of 13 pages The onus to prove this issue rests upon the plaintiff. The plaintiff has prayed for a decree for dissolution of marriage i.e Khula of the parties to the present suit. In Muslim Law, when the dissolution of marriage takes place at the instance of wife, it is called Khula.
According to Fatawai Alamgiri1 " When married parties disagree and are apprehensive that they cannot observe the bounds prescribed by the divine laws (that is, cannot perform the duties imposed on them by the conjugal relationship), the woman can release herself from the tie by giving up some property in return in consideration of which the husband is to give her a khula, and when they have done this, a talak-ul- bain would take place."
Thus, the mode of procedure for dissolution of marriage by way of Khula as pointed out herein above makes it apparent that the prerequisite of Khula is that the wife has to pay consideration for the divorce. The wife has to either abandon the dower or pay a certain sum of money to the husband or has to part with her property in favour of the husband.
In the instant case, nowhere in the plaint, the plaintiff has expressed her willingness to pay compensation for Khula. Thus, as the plaintiff has failed to assert payment of consideration in order to obtain her 1 Fatawai Aamgiri, Vol I, p. 669 Suit No. 71/12 Page 5 of 13 pages release from the defendant, she has not been able to satisfy the vital condition necessary for performance of valid Khula. Moreover, Divorce by way of Khula, can be effected only by mutual agreement between the parties and cannot be obtained by way of decree from the Court.
For the reasons recorded herein above, I am of the opinion that the plaintiff is not entitled to a decree for dissolution of marriage by way of Khula.
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 desertion, non-maintenance and cruelty against the defendant, hence the case of the plaintiff would be covered by sub-section Suit No. 71/12 Page 6 of 13 pages
(ii),(iv) and (viii)(a) of section 2 of Dissolution of Muslim Marriage Act. The detailed discussion on the aforesaid grounds is as under:-
DESERTION AND NON MAINTENANCE Section 2 (ii) empowers a Muslim wife to obtain a decree for dissolution of marriage in case the husband has neglected or has failed to provide for her maintenance for a period of two years. Section 2 (iv) postulates that a Muslim wife is entitled to a decree of divorce if her husband has failed to perform, without reasonable cause his matrimonial obligations for a period of three years.
The case of the plaintiff is that she was compelled to go back to her parental home on 02.10.2009 and since then the defendant has not made any arrangement for the maintenance of the plaintiff. The defendant has averred the mother and the brother of the plaintiff had taken the plaintiff to her parental home on the pretext of her medical treatment at Delhi.
It is an admitted case of the parties that a decree for restitution of conjugal rights has been passed in favour of the defendant and against the plaintiff by the Court of Ms Nisha Jha, Ld Senior Civil Judge, Bulandshahar, UP on 23.02.2012 after appreciation of evidence adduced by both the parties. The fact of desertion was a matter Suit No. 71/12 Page 7 of 13 pages substantially in issue in the suit for restitution of conjugal rights and a finding on the said issue has been returned in favour of the defendant. The said decision is binding upon the parties and as the issue of desertion has already been determined in favour of the defendant in the earlier suit for restitution of conjugal rights, the same cannot be re agitated before this Court. The plaintiff has not joined the company of the defendant despite a decree of restitution of conjugal rights being passed against her. Thus, the defendant can not be held guilty of desertion and of neglecting the plaintiff rather it is the plaintiff who has deserted the defendant.
As regards maintenance, a wife residing separately from her husband, is entitled to claim maintenance only if she has reasonable and sufficient grounds to justify her living separate. A decree of restitution of conjugal rights being in operation against the plaintiff, she cannot assert that she did not desert the defendant and the defendant compelled her to leave the matrimonial home. The plaintiff has been residing separate from the defendant without any legitimate reason and has not preferred to join the company of the defendant despite a decree of restitution of conjugal rights being passed against her.
The plaintiff by deserting the defendant has herself surrendered the right of maintenance, which was vested in her. The Suit No. 71/12 Page 8 of 13 pages defendant is not under a statutory obligation to maintain the plaintiff who has deserted him without any justifiable cause.
Keeping in view the foregoing reasons and discussion, the plaintiff is not entitled for divorce on the grounds of desertion and non maintenance under Section 2 (ii) &(iv) of Dissolution of Muslim Marriage Act, 1939.
CRUELTY 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.
Cruelty, no doubt, constitutes a pompous ground for 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.
Suit No. 71/12 Page 9 of 13 pages In order to substantiate her claim for divorce on the ground of cruelty, the plaintiff has levelled allegations such as the defendant made a demand of Rs 5,00,000/- as dowry , the defendant had the desire to marry some other girl and had treated her with cruelty due to which a dead male child was born to the plaintiff on 14.09.2009. The aforesaid allegations have been denied by the defendant.
The entire plaint is silent as regards the date, month or year when the demand of Rs 5,00,000/- was raised by the defendant. For the first time in cross examination, the plaintiff/ PW1 has deposed that the said demand was raised on the day of solemnization of marriage. In common parlance, the parents do not prefer to marry their daughter in the family who raises the demand of dowry on the day of marriage. The plaintiff should have declined to marry the defendant had he raised the dowry demand on the day of marriage. The parents of plaintiff did not prefer to lodge any complaint against the defendant and his family members for raising dowry demand on the day of marriage. This allegation of the plaintiff remains unsupported and it could have been corroborated by examining the family members of the plaintiff.
The plaintiff has made a bald allegation that the defendant had the desire to marry any other girl as even the name of that girl is not Suit No. 71/12 Page 10 of 13 pages forthcoming. Even the allegations of cruelty at the time of child birth are vague and untrustworthy for the reason that the plaintiff has not mentioned as to what was that specific act or conduct of the defendant which would constitute cruelty. The plaintiff has merely stated that she was treated with inhuman cruelty that by itself is not sufficient. The plaintiff was required to disclose specific incidents, acts and conduct of the defendant on the basis of which it could have been determined whether such state of affairs amounts to cruelty.
Even otherwise, the facts of dowry demand and inhuman treatment during child birth have been agitated and adjudicated in the suit for restitution of conjugal rights against the plaintiff, the principle of res judicata will apply and these facts cannot be re adjudicated in the present case.
In view of the aforesaid discussion, I am of the opinion that the allegations levelled by the plaintiff have not been established and these acts are not sufficient to hold that the defendant treated the plaintiff with cruelty.
Issue no. 1 is decided against the plaintiff and in favour of the defendant.
Issue No. (ii) :- Whether suit of the plaintiff is barred in as much Suit No. 71/12 Page 11 of 13 pages
as a decree for restitution of conjugal right has been passed from the competent court at Bulandsahar, U.P. ? OPD.
The onus to prove this issue is placed upon the defendant. It was for the defendant to establish that the present suit is barred in view of judgment of restitution of conjugal rights passed in his favour by Bulandshahar, however, no evidence has been led by the defendant in support of this issue. The marriage between Muslims is essentially a contract. The suit for restitution of conjugal rights is basically a suit for specific performance and the present suit for dissolution of marriage is altogether of a different nature as it is in essence a suit for repudiation of contract. Thus, the present suit cannot be said to be barred in as much as decree for restitution of conjugal rights has been passed by Bulandshahar Court.
Issue no. 2 is decided in favour of plaintiff and against the defendant.
Issue No. (iii): Whether suit is without any cause of action? OPD.
The onus to prove this issue was upon the defendant. The defendant has not adduced any evidence to prove that the suit is without cause of action. A meaningful reading of the plaint does disclose cause of Suit No. 71/12 Page 12 of 13 pages action for filing the present suit.
Issue no. 3 is decided in favour of the plaintiff and against the defendant.
Issue No. (iv) : Relief.
In view of my findings recorded herein above, the suit of the plaintiff is dismissed. No order as to costs.
Decree sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
Announced in the open court (SHUCHI LALER)
12.11.2013 ACJ/ARC (NE),
KKD COURTS, DELHI.
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