Allahabad High Court
Syed Ahmad Khan vs Smt. Imrat Jahan Begum on 27 January, 1982
Equivalent citations: AIR1982ALL155, AIR 1982 ALLAHABAD 155, (1982) 1 DMC 285
JUDGMENT Deoki Nandan, J.
1. These are two First Appeals, one by the husband, being First Appeal No. 107 of 1979 from a decree dated 23rd Nov., 1978 for recovery of Rs. 20,000/- as dower in Suit No. 100 of 1975 of the court of the Civil Judge, Budaun, and the other by the wife be-ins First Appeal No. 498 of 1981 from a decree dated 23rd Nov., 1978 for restitution of conjugal rights passed by the court of the Civil Judge, Budaun in Suit No. 435 of 1973. This latter appeal was originally filed in the court of the District Judge, Budaun. but was withdrawn by this Court and connected with the former appeal.
2. The two suits giving rise to these two First Appeals were consolidated and tried together and disposed of by a common judgment dated 23rd Nov., 1973 by the court of the Civil Judge, Budaun. Suit No. 435 of 1973 for restitution of conjugal rights was treated to be the leading case. Both the suits were decreed. Thus, while there is a decree for restitution of conjugal rights against the wife, there is a decree for recovery of Rs. 20,000/- as prompt dower against the husband.
3. The relevant facts of the case are that the parties were married in the year 1968. The husband Syed Ahmad Khan had already a wife living when he married the present wife Smt. Imrat Begum. The parties are supposed to have lived and cohabited together only for about a year and it was stated in the husband's plaint dated the 29th Oct., 1973 for restitution of conjugal rights (Suit No. 435 of 1973 originally of the court of Munsif, Bisauli) that the wife had for the last four years neglected and refused to give her society or to cohabit with the husband without just cause and had taken to the profession of a teacher at Gunnaur against his wishes; and did not come to live with him in spite of a notice served in July, 1973. It is not necessary to detail the defence set up by the wife. The issues, on which the parties went to trial, were the following :--
"1. Whether the defendant has withdrawn herself from the society of the plaintiff without any just and reasonable cause?
2. Whether the plaintiff cannot force restitution of the conjugal rights?
3. Whether the defendant has right to refuse the restitution of the conjugal rights for reasons given in written statements?
4. Whether the plaintiff is entitled for the decree of conjugal rights?
5. To what relief, if any, is the plaintiff entitled?
4. On an appraisal of the evidence on the record, the trial court answered issues Nos. 1 and 3 by saying that the defendant wife had withdrawn from the society of the plaintiff husband without just and reasonable cause and that she had failed to prove that there is any reason for her to refuse restitution of conjugal rights and on issues Nos. 2 and 4 that the plaintiff was accordingly entitled to a decree for restitution of conjugal rights.
5. In the other suit, namely Suit No. 435 of 1973 originally of the court of the Munsif. Bisauli, it was stated that the parties were married on 3rd June, 1968 that the amount of dower settled was Rs. 20,000/- and that the whole of it was prompt. A Nikahnama in proof of the same was referred to in the plaint, proved and produced at the trial. It was said that the amount was not being paid by the defendant in spite of repeated demands and that the husband ultimately refused to pay it through his notice dated 6th July, 1973 hence the suit. In this case too, it is not necessary to detail the defence and a reference to the issues framed by the trial court is sufficient, They were--
(1) Whether the plaintiff is entitled to claim of the dower?
(2) Whether the suit is barred by estoppel and acquiescence?
(3) Whether the suit is barred by time?
(4) Whether the plaintiff is not entitled to recover the dower debt as alleged in para 7 of the written statement? and (5) To what relief, if any, is the plaintiff entitled?
6. The finding of the trial court on issue No. 1 was that the wife was entitled to claim the dower from the husband, on issue No. 3 that the suit was not barred by time Issues Nos. 2 and 4 were not pressed.
7. In the result, both the suits were decreed as aforesaid by the trial court.
8. It appears from the reasons given by the trial court for its findings on issues Nos. 1 and 3 in the suit for restitution of conjugal rights, that the wife was willing to live with the husband even up to the year 1972 and that she could not be said to have been treated cruelly by the husband so as to give her any cause for refusing her society to him. This finding cuts both ways, for it means that while on the one hand the wife could not be said to have withdrawn herself from the society of the husband at least up to the year 1972, on the other hand that there was no good cause for her refusing to join the husband, particularly when the husband served a notice on her as to do so and even followed it up by a suit. The finding that the wife could not complain of any cruelty during the period when she did actually live with her husband cannot be seriously challenged if she was willing to go back to the husband in the year 1972. The fact that she had not lived with the husband at anytime after 1969 shows that she could have had no reasonable ground for believing that it would not be safe for her to live with the husband. Mr. Janardan Sahai pointed out that it was admitted by the husband that he had married a third time during the pendency of this litigation. That may be a good cause for refusing a decree for restitution of conjugal rights, but the learned Judge pointed out that even so a Muslim is entitled to have up to four wives. Since the wife did not live with the husband for a single day after his having married a third time, it cannot be said that the husband does not treat his wife , equitably in accordance with the injunction of the Quran. So far as the first wife was concerned the com-plaint was not that the husband did not treat the wife, who has appealed from the decree of the restitution of conjugal rights, equitably in accordance with the injunctions of the Quran but that the first wife treated her roughly. It therefore appears to me that the wife, who has appealed from the decree of restitution of conjugal rights, cannot be said to have proved that the husband had treated her with cruelty in the sense in which it is explained and defined in the Dissolution of Muslim Marriages Act, 1939. That being so she could not properly resist the husband's demand for her society which he has followed up with the suit for restitution of conjugal rights,
9. Confronted with this position Mr, Janardan Sahai, learned counsel for the wife, contended that the decree for restitution of conjugal rights, even if it were allowed to stand could not be enforced unless the wife's demand for payment of her prompt dower was satisfied. On this Mr. Raieshji Verma objected that after consummation of a marriage non payment of dower, even though exigible, cannot be pleaded in defence to an action for restitution of conjugal rights, and relied upon for the proposition on a Division Bench decision of this Court in Rabia Khatoon v. Mohd. Mukh-tar Ahmad (AIR 1966 All 548). Mr. Janardan Sahai countered by saying that he is not putting forth the demand for dower as a defence to an action for restitution of conjugal rights. The wife already has a decree in her favour for recovery of her prompt dower, The husband was not paying it and in equity the court ought to have made the satisfaction of the decree for recovery of dower as a condition for enforcement of the decree for restitution of conjugal rights In Smt. Rabia Khatoon's case (supra) also although non payment of the dower was not admitted as a proper defence in the suit for restitution of conjugal rights which was decreed yet the decree was made conditional upon payment of the amount of prompt dower by the husband to the wife.
10. Under the circumstances, it would be equitable, iust and proper to impose a condition, that the decree for restitution of conjugal rights would not be executable unless the decree for recovery of the prompt dower was satisfied. This, however, brings me to the question whether the decree for recovery of dower is sustainable.
11. One of the grounds of objection against the decree was that the suit was time barred. Apart from the facts found by the trial court for holding that the claim was not barred by limitation. I have been referred to the judgment of this Court in Naeem Begum v. Alam Ali Khan, (1979 All LJ 771) wherein it was held that Section 29(3) of the Limitation Act, 1963 expressly saves a suit for recovery of dower which is brought under the Muslim Law of marriage and divorce, from the law of limitation.
12. On the merits of the claim the husband's defence was that it had been remitted by the wife. That defence has been disbelieved by the trial court on an appraisal of evidence, on the record. The evidence on this point is oral. The trial court had the opportunity of hearing the witnesses and watching their demeanour. There is nothing in the facts and circumstances of the case which may give me reason to think that the finding is, in anyway, incorrect Learned counsel for the appellant has been unable to show that the finding suffers from any error. The amount of the dower was not remitted. The correctness of the amount or that the whole of it was prompt was not challenged by the husband, his whole defence being that it was remitted.
13. In the result, both these appeals are liable to be dismissed, subject however, to the modification in the decree for restitution of conjugal rights that was passed by the Civil Judge. Budaun, in Suit No. 435 of 1973 originally of the court of Munsif, Bisauli, to the effect that the decree shall not be executable and shall not be executed until such time as the decree for recovery of dower passed in Suit No. 100 of 1975 of the court of the Civil Judge, Budaun, is fully satisfied. In the circumstances, I would however, direct that the husband Sayed Ahman Khan shall pay the costs of the wife in both the First Appeal in this Court.