Andhra HC (Pre-Telangana)
G.Fazeel Ahmad vs S.Jameela Unnisa on 7 August, 2014
Bench: K.C.Bhanu, Anis
THE HONBLE SRI JUSTICE K.C.BHANU AND THE HONBLE SMT. JUSTICE ANIS CIVIL MISCELLANEOUS APPEAL NO. 4506 OF 2003 07-08-2014 G.Fazeel Ahmad.Appellant S.Jameela Unnisa.....Respondent Counsel for the Appellant:Sri Nazeer Khan Counsel for the Respondent: Sri O.Manoher Reddy <Gist : >Head Note: ? Cases referred: 1. AIR 2001 S.C. 3958 THE HONBLE SRI JUSTICE K.C.BHANU AND THE HONBLE SMT. JUSTICE ANIS CIVIL MISCELLANEOUS APPEAL NO. 4506 OF 2003 JUDGMENT:
(Per the Honble Smt. Justice Anis)
1. This Civil Miscellaneous Appeal, under Section 19 of the Family Courts Act, 1984, is directed against the order, dated 10.11.2003 passed in O.P.No.2 of 2002 on the file of the Judge, Family Court, Kurnool.
2. Appellant was arrayed as the respondent, while the respondent as the petitioner in O.P. before the Family Court.
3. For the sake of convenience, the parties are referred to as arrayed in the O.P. before the Family Court.
4. The petitioner filed the petition under Section 3(1)(a) &
(d) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short the Act) for reasonable and fair provision of maintenance of Rs.6,00,000/- for her whole life, for return of dowry amount and for return of Jahez articles mentioned in petition schedule or its equivalent value.
5. The brief averments made in the petition filed before the Family Court is as follows:
The marriage between the petitioner and the respondent was solemnized on 11.07.1999 at Kurnool as per Shariath i.e. Muslim customs. At the time of marriage, the petitioners parents incurred heavy expenditure towards marriage and they presented the petition schedule articles and Rs.60,000/- as dowry in cash to the respondent. Further, the parents of the petitioner gave 9 tulas of gold to the respondent at the time of marriage. After the marriage, the petitioner joined the matrimonial society with the respondent and spent forty days. During that period, the respondent started harassing the petitioner to bring Hero Honda motorcycle and additional dowry. The petitioner has not been provided food properly, thereby she fell sick for a period of four months and she was not treated like a human being. Thereafter, the petitioners father took her to Kurnool for treatment. After recovery from illness, the father of the petitioner went to the house of respondent at Nandyal and requested the respondent and his family members to take the petitioner to the matrimonial society of the respondent, but they did not heed the request of the father of the petitioner. As the respondent has deserted the petitioner, she filed M.C.No.1 of 2001 before the Family Court at Kurnool. On 22.11.2000, the respondent pronounced talaq to the petitioner by paying the Mehar and three months Iddat amount i.e. Rs.4,692/-, but he has not given dowry amount, gold and jahez articles as mentioned in the schedule.
The petitioner is a housewife and she is not in a position to maintain herself by doing any work as she is a Pardanashin lady and her parents are not financially sound to maintain her as they became old. The petitioner has no source of income except the petitions schedule articles. The respondent is working in T.M.C. Cotton Seed Oil and Cake Industries. Apart from that, the respondent is earning a sum of Rs.5,000/- per month through furniture business. Hence, the petitioner is entitled for reasonable and fair maintenance extending beyond iddat period for her whole life.
6. The brief averments made in the Counter filed by the respondent before the Family Court is as follows:
The respondent admitted that his marriage with the petitioner was performed as per Muslim Law. After the marriage, the respondent took the petitioner to his house at Nandyal where his parents were residing. The parents of the petitioner did not incur heavy expenditure in performing the marriage between the petitioner and the respondent as claimed by the petitioner. The parents of the petitioner gave Rs.20,000/- but not Rs.60,000/- and out of that Rs.20,000/-, Rs.1,000/- was deducted by the parents of the petitioner towards stitching charges of the clothes of the respondent. The father of the petitioner has no capacity to give Rs.60,000/- towards dowry. The respondent denied that the parents of the petitioner gave 9 tulas of gold ornaments and jahez articles shown in the petition schedule, but admitted that the petitioner filed M.C.No.1 of 2001. The respondent specifically stated that he is in possession of the articles as mentioned in his counter in M.C.No.1 of 2001. After marriage, the petitioner never stayed at Nandyal with the respondent. From the date of marriage, the petitioner, her mother and her uncle by name Jaffer Miah forced the respondent to keep the petitioner separately at Kurnool by leaving his old aged parents at Nandyal, but the respondent did not agree and whenever the respondent went to Kurnool to get the petitioner to Nandyal, they used to quarrel with him. The petitioner voluntarily left the house of the respondent in the month of December, 1999 with gold articles weighing about 9 tulas and other sarees. The respondent stated that he is ready to return Rs.19,000/- to the petitioner after deducting the amount of 2 tulas of gold chain worth Rs.12,000/- which was given to the petitioner at the time of marriage. The respondent denied that he demanded Hero Honda motorcycle and additional dowry from the parents of the petitioner. The respondent also denied that he harassed the petitioner by not providing proper food to her. The respondent denied that he deserted the petitioner and the petitioner fell sick for about nine months and her father took her to Kurnool for treatment. The petitioner not pressed M.C.No.1 of 2001 and O.S.No.13 of 2001 for the reasons best known to her. The misunderstandings between the petitioner and the respondent cropped up because of the petitioners mother and her uncle by name Jaffer Mia as they started forcing the respondent to keep the petitioner separately at Kurnool at their house leaving his aged parents at Nandyal. When the petitioner failed to join with the respondent, the respondent gave legal notice on 24.05.2003 directing the petitioner to stay with him at Nandyal, but she did not agree to join with him, as such, he pronounced Talaq by paying proper mehar and iddat amount.
The respondent also alleged that the petitioner filed a criminal case, in which his parents and himself were obtained anticipatory bail from the Court. The respondent denied that the petitioner is an unemployed lady and not having any movable or immovable properties of her own. The respondent specifically stated that he was removed from service on 30.08.2000 by the management of the industry as he was not regularly attending the duties. Further, the respondent also not running the furniture business as claimed by the petitioner, and therefore, finally prayed the Court to dismiss the petition.
7. Basing on the above pleadings, the Tribunal framed two points and in order to substantiate her case, the petitioner herself was examined as PW1, got examined her parents as PWs 2 and 3, examined one independent witness and got marked Exs.A.1 to A.10. On behalf of the respondent, RWs 1 to 3 were examined and Exs.B.1 to B.7 were marked.
8. After considering the oral and documentary evidence and upon hearing the learned counsel for both the parties, the trial Court allowed the petition in part and held that the petitioner is entitled to recover the following amounts from the respondent:
(i) Rs.3,000/- being the amount towards Iddat period;
(ii) Rs.1,125/- towards Mahar amount;
(iii) Rs.20,000/- towards dowry amount;
(iv) Rs.35,000/- towards the worth of gold ornaments weighing seven tulas of gold retained by the respondent;
(v) for return of 25 items of the Jahez articles as mentioned in the counter of the respondent; and
(vi) a sum of Rs.1,000/- per month is awarded to the petitioner towards reasonable and fair provision including of her maintenance from the date of the petition i.e. from 5.1.2002.
9. Aggrieved by the order of the trial Court, the respondent preferred the present appeal.
10. The learned counsel for the appellant/respondent argued that there is no dispute about the marriage of the appellant with the respondent/petitioner on 11.07.1999 and the appellant divorced the respondent as per Muslim law by pronouncing talaq on 22.11.2000; that the allegations of the respondent that her parents gave Rs.60,000/- as dowry and 9 tulas of gold and performed the marriage by spending Rs.10,000/-, are all false; that as the appellant pronounced talaq on 22.11.2000 by paying mehar and iddat amount, question of paying maintenance at Rs.1000/- per month does not arise; that the appellant is not working in T.M.C. Cotton Seed Oil and Cake Industries, Nandyal and not earning Rs.2,000/- per month as salary or Rs.5,000/- per month from furniture business; that the appellant divorced the respondent by pronouncing talaq on 22.11.2000 and the trial Court erred in granting maintenance @ Rs.1,000/- per month from the date of petition to the respondent, which is contrary to the provisions of the Act and relied the case-law reported in Danial Latifi and another Vs. Union of India and finally prayed the Court to set aside the order passed by the trial Court in respect of the maintenance of Rs.1,000/- per month granted to the respondent.
11. On the other hand, the learned counsel for the respondent/petitioner argued that the trial Court rightly granted maintenance to the respondent herein by allowing the O.P. in part; that the trial Court also held that the respondent is entitled for Rs.20,000/- towards dowry amount, Rs.35,000/- towards return of gold ornaments, Rs.4,125/- towards iddat and mehar amount and Jahez articles, thus there is no need for interference by this Court with respect to the orders passed in favour of the respondent, and finally prayed the Court to dismiss the appeal.
12. After hearing both sides, the point that arises for consideration is:
Whether the appellant has made out any case to set aside the impugned order passed by the trial Court as prayed for?
13. POINT:
After hearing both sides and on perusal of oral and documentary evidence, it is clear that there is no dispute regarding the marriage of the appellant with the respondent on 11.07.1999 as per Muslim law. Immediately, after the marriage, the respondent joined the matrimonial society of the appellant and lead marital life for six months. Thereafter, the appellant and his family refused to receive the company of the respondent. The evidence on record shows that the evidence of respondent and her parents supported the pleadings, whereas the appellant denied the allegation of demanding additional dowry and harassing the respondent.
14. It is an admitted fact that on 22.11.2000, the appellant divorced the respondent as per Muslim law by pronouncing talaq and the respondent admitted this fact in the petition filed before the trial Court and also admitted that the appellant paid Rs.4,692/- towards mehar and three months iddat amount. In the O.P. filed before the trial Court, the respondent herein not only claimed the return of dowry amount, jahez articles and 9 tulas of gold or equivalent amount of Rs.47,500/- but also sought for a reasonable and fair provision of maintenance of Rs.6,00,000/- under Section 3(1)(a) and (d) of the Act. Section 3(1)(a) and (d) of the Act reads thus:
3. Mahr or other properties of Muslim woman to be given to her at the time of divorce. -
(1) Notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to-
(a) A reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband: (b) * * * (c) * * * (d) All the properties given to her before or at the time of marriage or after the marriage by her relatives or friends or the husband or any relatives of the husband or his friends.
15. The learned counsel for the appellant argued that the appellant paid Rs.4,692/- towards mehar and three months iddat amount and he is ready to return Rs.20,000/- towards dowry amount instead of Rs.60,000/- claimed by the respondent and also ready to return the jehaz articles mentioned in the counter filed by him in the trial Court and also ready to pay Rs.35,000/- towards cost of the gold ornaments. So far as payment of dowry amount is concerned, the respondent contended that her father gave Rs.60,000/- as dowry at the time of marriage, whereas the appellant stated that he received only Rs.20,000/- towards dowry amount and he is ready to pay the same. Since there is no specific evidence on this aspect, the trial Court rightly ordered to return of Rs.20,000/- towards dowry amount. Likewise, the trial Court also rightly held that the appellant has to return Rs.35,000/- towards the cost of gold ornaments and also return of Jahez articles. However, the trial Court after considering the evidence, legal propositions enumerated in various decisions and settled law reported in Danial Latifi and another Vs. Union of India (1 supra), granted Rs.1,000/- per month towards maintenance from the date of petition i.e. 05.01.2002.
16. Now, the only dispute remains is with regard to the payment of Rs.1,000/- per month as maintenance which was awarded by the trial Court. The learned counsel for the appellant argued that after divorce, the respondent is not entitled to claim maintenance from the appellant as she is no more the wife of the appellant and whatever amount paid towards mehar and three months iddat amount is sufficient and the appellant is not liable to pay any further maintenance to the respondent. On the other hand, the learned counsel for the respondent argued that iddat period maintenance is not fair and reasonable and the appellant has to provide sufficient means of livelihood to the respondent and relied on a decision reported in Danial Latifi and another Vs. Union of India (1 supra), wherein the Honble Supreme Court held at Para 29 as follows:
A careful reading of the provisions of the Act would indicate that a divorced woman is entitled to a reasonable and fair provision for maintenance. It was stated that Parliament seems to intend that the divorced woman gets sufficient means of livelihood, after the divorce and, therefore, the word provision indicates that something is provided in advance for meeting some needs. In other words, at the time of divorce the Muslim husband is required to contemplate the future needs and make preparatory arrangements in advance for meeting those needs. Reasonable and fair provision may include provision for her residence, her food, her cloths, and other articles. The expression within should be read as during or for and this cannot be done because words cannot be construed contrary to their meaning as the word within would mean on or before, not beyond and, therefore, it was held that the Act would mean that on or before the expiration of the iddat period, the husband is bound to make and pay a maintenance to the wife and if he fails to do so then the wife is entitled to recover it by filing an application before the Magistrate as provided in Section 3(3) but nowhere the Parliament has provided that reasonable and fair provision and maintenance is limited only for the iddat period and not beyond it. It would extend to the whole life of the divorced wife unless she gets married for a second time.
It is also held at Para 37 as follows:
While upholding the validity of the Act, we may sum up our conclusions:
1) A Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance as well.
Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3(1)(a) of the Act.
2) Liability of Muslim husband to his divorced wife arising under Section 3(1)(a) of the Act to pay maintenance is not confined to iddat period.
3) A divorced Muslim woman who has not remarried and who is not able to maintain herself after iddat period can proceed as provided under Section 4 of the Act against the relatives who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim law from such divorced woman including her children and parents. If any of the relatives being unable to pay maintenance, the Magistrate may direct the State Wakf Board established under the Act to pay such maintenance.
4) The provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of India.
17. The contention of the appellant that he paid mehar and three months iddat amount amounting to Rs.4,692/- and it is sufficient for the respondent towards maintenance. On the other hand, the learned counsel for the respondent contended that the divorced woman is entitled to a reasonable and fair provision for maintenance. The Honble Supreme Court in the above judgment clearly held that a Muslim woman is entitled for a reasonable and fair provision extending beyond the iddat period. The Honble Supreme Court further held that reasonable and fair provision may include provision for her residence, her food, her clothes and other articles. Therefore, payment of Rs.4,692/- towards mehar and three months iddat amount to the respondent, is not a reasonable and fair maintenance.
18. In the petition filed before the trial Court, the respondent herein no doubt claimed Rs.6 lakhs towards reasonable and fair maintenance. But, a careful reading of the evidence of the appellant and respondent shows that the appellant was working in T.M.C. Cotton Seed Oil and Cake Industries, Nandyal and drawing a salary of Rs.2,000/- per month, however as the appellant has not been attending the office, he was removed from service and now, he is not in a position to pay such maintenance. Though the appellant has not produced any evidence to show that he lost his job, but the fact remains that the appellant divorced the respondent on 22.11.2000 by pronouncing talaq and now it is the duty of the appellant to provide reasonable and fair maintenance to the respondent.
19. Taking into consideration of the financial background of the appellant, an amount of Rs.50,000/- is awarded to the respondent herein towards maintenance, which is a reasonable and fair provision for maintenance and the impugned order of the trial Court with regard to granting of Rs.1,000/- per month towards reasonable and fair provision from the date of petition, is hereby set aside. The impugned order of the trial Court with regard to awarding of Rs.3,000/- towards iddat period amount, Rs.1,125/- towards Mehar amount, Rs.20,000/- towards dowry amount, Rs.35,000/- towards worth of gold ornaments weighting 7 tulas of gold and for return of 25 items of Jahez articles as mentioned in the counter filed before the trial Court, is hereby confirmed.
20. With the above modification, the Civil Miscellaneous Appeal is dismissed. No order as to costs. Miscellaneous Petitions, if any, pending in the appeal shall stand closed.
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(K.C. BHANU, J)
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(ANIS, J) 07.08.2014