Jammu & Kashmir High Court
Zabir Ahmed vs Marufa Begum on 6 March, 2024
Sr. No.
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
ATJAMMU
CFA No. 20/2015
Reserved on: 27.02.2024
Pronounced on: 06. 03.2024
Zabir Ahmed, age 45 years .....Appellant(s)
S/O Late Mohd Din, R/O Village Lah,
Tehsil Thanna Mandi,
District Rajouri.
Through :- Mr. Z A Qazi, Advocate
v/s
Marufa Begum, D/O Salam Din, .....Respondent(s)
R/O Village Targain, Tehsil Koteranka,
District Rajouri
Through :- Mr. Rajnish Raina, Advocate &
Mr. Rishu Rajeshwar, Advocate
CORAM: HON'BLE MR. JUSTICE M A CHOWDHARY, JUDGE
JUDGMENT
1. The appellant has preferred this Civil First Appeal against the judgment and decree dated 20.10.2015 passed by the learned District Judge Rajouri, whereby he has been directed to pay an amount of Rs.2.00 lacs as deferred dower to the respondent along with costs of Rs.72,610/-.
2. The appellant feeling aggrieved, has assailed the impugned judgment on the grounds that the same has been passed without appreciating the true facts and evidence on record, contrary to the statutory requirement as mentioned in the J&K Muslim Dower Act, 1920 AD, according to which no decree can be issued against the party, if the dower amount is exorbitant keeping in view status of the parties; that the impugned judgment is bad on 2 CFA No., 20 of 2015 this ground as well as that important issues with regard to date of marriage as to whether the same was solemnized on 09.11.1996 or 09.12.1997 and genuineness of Nikahnama, which was relied upon by the respondent as plaintiff in the suit, has not been framed; that the impugned judgment is devoid of marriage law as has been passed without appreciating the true facts as were pleaded by the appellant as defendant and the statements of his witnesses; that the trial Court has not considered the Nikahnama which was produced/annexed by the appellant as defendant along with his written statement to the suit filed before the trial Court; that the trial Court had over-looked the contentions of the respondents that with the connivance of some persons, the respondent had prepared a false and forged Nikahnama which had been relied upon by the trial Court; that the judgment has not been passed, with regard to the customs of the area and status/position of the parties at the time of marriage and directed the appellant to pay an amount of Rs.2.00 lacs along with costs of the suit within a period of two months as a deferred dower which was not only excessive, unjust and unreasonable but is against the principle of natural justice and finally it was prayed to allow the appeal and set aside the impugned judgment and decree.
3. The factual background as pleaded by the appellant before the trial Court and reiterated in the memorandum of appeal is that the parties got married on 09.12.1997 at village Targain and at the time of Nikah ceremony, the dower for an amount of Rs.20,000/- was fixed, out of which Rs.7,000/- was paid as prompt dower and an amount of Rs.13,000/- was deferred and that Nikah had been performed by Molvi Syed Shabir Shah in presence of competent/respectable persons of the area from both the sides. 3 CFA No., 20 of 2015
4. Respondent as plaintiff filed a pauper suit seeking recovery of Rs.4,93,000/- as deferred dower and Rs.2,28,660/- as costs of the dowry articles asserting therein that the parties had a married life for 13 years and thereafter her husband turned her out of the matrimonial home and eventually on 23.12.2010 the defendant divorced her when proceedings were initiated against him claiming maintenance under section 488 of J&K CrPC. It is being pleaded that at the time of announcing of divorce, the husband had neither paid her deferred dower nor handed over other dowry articles to the wife, though requested by her and on refusal by the defendant she filed the suit before Trial Court.
5. The appellant as defendant before the Court below, while controverting the averments made in the plaint, in his written statement pleaded, inter alia, that at the time of marriage between the parties, the dower was fixed just as Rs.20,000/- out of which Rs.7,000/- was fixed as prompt and Rs.13,000/- was fixed as deferred and the defendant was ready to pay deferred dower for an amount of Rs.13,000/- to the plaintiff but she was not ready to receive the same. It was further alleged by him that his wife in connivance with some person got prepared a fake Nikahnama and that she was entitled to an amount of Rs.20,000/- only as per the Nikahnama executed at the time of marriage. It was also denied that the parents of the wife had ever given any articles to the plaintiff as dowry so there was no question of snatching the dowry articles from her possession by him and that he had divorced his wife due to her bad activities.
6. The trial Court, on the basis of the pleadings of the parties, raised following three issues for the determination of the suit, onus of which was placed on the plaintiff:
4 CFA No., 20 of 2015
1. Whether the dower fixed for the marriage contract of the parties was Rs.4,95,000/- out of which Rs.4,93,000/- being the deferred dower is outstanding against the defendant? OPP
2. Whether the dowry to the tune of Rs.2,28,660/- was also taken by the plaintiff at the time of her marriage alongwith her which still is in the possession of defendant even after the divorce of plaintiff? OPP
3. If issues No. 1 and 2 are proved in affirmative to what relief the plaintiff is entitled to? OPP
7. Plaintiff-wife in order to prove her case besides herself, examined Salam Din, Suleman Shah and Haider Shah as her witnesses, whereas defendant- husband besides himself, examined Mohd Amin, Mohd Bashir Shah and Mazhar Din as his witnesses. The Trial Court after appreciating the evidence led by both the sides decided all the issues onus of which was placed on the plaintiff-wife.
8. Issue No.1 to prove that whether the dower fixed for the marriage contract of the parties was Rs.4,95,000/- out of which Rs.4,93,000/- being the deferred is outstanding against the defendant was decided holding that Rs.2.00 lacs was a reasonable amount for deferred dower which is outstanding against the defendant and that legally he is bound to pay the same to the plaintiff-wife.
9. Issue No.2 with regard to prove that whether the dowry articles of the value of Rs.2,28,660/- were also taken by the plaintiff at the time of her marriage alongwith her and which were still in the possession of defendant, even after divorce of the plaintiff was decided holding that the plaintiff had failed to prove this issue which was decided against her and in favour of the defendant.
5 CFA No., 20 of 2015
10. The Trial Court on the basis of the finding recorded on Issue No.1 decreed the suit for payment of an amount of Rs. 2.00 lacs being deferred dower against the defendant directing him to pay the same to the plaintiff within a period of two months along with costs of the suit.
11. Learned counsel for the appellant, vehemently, argued that the trial Court has mis-directed itself on some factual issues particularly the date of marriage as the parties had married on 09.11.1997, whereas the respondent as plaintiff had pleaded in her suit that they got married on 09.11.1996. He has further argued that the appellant had divorced the respondent on 29.12.2010 and the petitioner had asserted in her suit that she was divorced on 23.12.2010, whereas against actual facts as she had contracted second marriage on 22.12.2010 and how she could be divorced a day after her second marriage; that the appellant as defendant had annexed a copy of Nikahnama of the marriage of the parties wherein the total dower was shown to have been fixed as Rs.20,000/- (Rs.13,000/- as deferred dower and Rs.7,000/- was as prompt dower), whereas the respondent as plaintiff had produced a fake Nikahnama showing a different date of the marriage as well as the amount of dower in lakhs.
12. He further argued that the trial Court ought to have framed the issues with regard to the Nikahnama produced by the defendant, however, the trial Court had failed to raise proper issues for the just decision of the case and instead decreed the suit on the basis of the issues framed onus of which had been placed on the plaintiff only, as such, the defendant could not lead any evidence in support of his claim with regard to the Nikahnama which he had produced; that the trial Court has mis-directed itself in deciding the matter on a presumptive notion having regard to the middle class 6 CFA No., 20 of 2015 background of the parties that the dower in an amount of Rs.2.00 lacs was just and proper instead of claim of Rs.4,95,000/- made by the plaintiff, as such the impugned judgment cannot sustain in the eyes of law having been passed on a presumption instead of evidence by the trial Court; that the witnesses examined by the plaintiff were also not consistent with regard to the fixation of the dower amount as the plaintiff had stated that dower amount was Rs. 4,95,000/-, whereas PW-Haider Shah had stated that this amount was Rs. 4,93,000/- and PW Salam Din who happens to be the father of the plaintiff stated that the dower was in the amount of Rs.95,000/- only. These witnesses have also contradicted each other with regard to timing of the Nikahnama, some saying it was executed at 4:00 am in the morning, whereas the other stated that the Nikahnama was performed during day time. Another witness examined by the plaintiff PW Suleman Shah had stated that the Nikahnama was only signed by the persons present and particulars were filled up in the Nikahnama later.
13. He further argued that in view of the contradictory evidence led by the plaintiff her suit should have been dismissed but the trial Court went ahead to pass a decree in her favour granting an amount of Rs.2.00 lacs as deferred dower besides costs; that the defendant had examined some witnesses, however, the trial Court had left out two of the DW Mohd Nissar and Mujahid Hussain who had been examined by him on 16.12.2014 and 11.09.2014 respectively and their evidence was not considered by the trial Court. He has relied upon the law laid down in 2010(2) JKJ 83 and 1998(1) RCR (Crminal) 484, in support of his case and prayed that the appeal filed by the appellant be allowed and the impugned judgment and decree be set aside.
7 CFA No., 20 of 2015
14. Learned counsel for the respondents, on the other hand, argued that the Trial Court has passed the impugned judgment and decree perfectly in accordance with law and does not call for any interference by this Court while invoking the appellate jurisdiction. He has argued that though the plaintiff had claimed an amount of Rs.4,95,000/- as dower fixed at the time of marriage but the trial Court in view of the social and economic status of the families of the parties, fixed an amount of dower Rs. 2.00 lacs only and also did not grant any relief to the extent of the cost of the dowry items allegedly retained by the defendant, after the divorce of the plaintiff. He has argued that the defendant who is a destitute woman was granted this relief in the year 2015 after a prolonged litigation having been initiated in the year 2011 when she had filed the suit against the defendant/appellant and that the respondent has still been awaiting to reap the fruit of the litigation in this year of 2024. He has argued that the appellant has not been able to show, on any legal ground, that the impugned judgment passed by the trial Court was not in accordance with law. He finally prayed that the appeal be dismissed with costs and the impugned judgment and decree passed by the trial Court be upheld.
15. The contentions of learned counsel for the appellant that a separate issue had not been framed by the Trial Court with regard to the assertion of the appellant as defendant with regard to the fact that the respondent as plaintiff produced a forged Nikahnama, whereas he had produced the original Nikahnama, executed while contracting marriage between the parties. Though it is a fact that no issue was settled by the Trial Court with regard to this fact separately placing onus on the appellant as defendant, however, since the Issue No.1 could have covered all the facts with regard 8 CFA No., 20 of 2015 to both the Nikahnamas and the fact with regard to fixation of the dower. On going through the evidence led by both the sides and the statements of the parties and their witnesses, nothing transpires that any question with regard to the Nikahnama placed with the written statement by the appellant as defendant was made any reference, so much so that the plaintiff was not even confronted with this Nikahnama, which was claimed by the defendant as genuine or to any of her witnesses. The defendant himself did not state anything with regard to this fact. Neither the Nikahnama was proved by him nor any witness was examined in support of the contention that the Nikahnama had been executed at the time of contracting marriage in presence of those witnesses. The appellant as defendant had not applied to the Trial Court for re-casting of the issues if to him it appeared that the issues have not been properly settled by the Trial Court. Now at this appellate stage, it does not lie in his mouth to agitate on this point, as such, this plea is untenable and is rejected.
16. The other ground raised by learned counsel for the appellant that the Trial Court had not relied upon the evidence led by the plaintiff-respondent during trial and decided the quantum of dower on presumption having regard to the socio- economic background of the parties. On perusal of the finding recorded by the Trial Court it appears that the Trial Court has made an observation and decided this case with regard to the fixation of dower in view of the Jammu and Kashmir Muslim Dower Act, 1977 (1920 AD). Section 2 of which provided as under:-
"where the amount of dower is stipulated for in any contract of dower by a Mohammedan is excessive with reference to the means of the husband and the entire sum 9 CFA No., 20 of 2015 provided in the contract shall not be awarded in any suit by a decree in favour of the petitioner or by allowing it by way of set off, lien or otherwise to the defendant; but the amount of dower to be allowed by the courts shall be reasonable with reference to the means of the husband and the status of the wife. This rule shall be applicable whether the suit to enforce the contract be brought in the husband's life time or after his death. "
Learned Trial Court in the considered opinion of this Court, has rightly taken a decision to invoke the provisions of the aforesaid Act in absence of convincing evidence led by the plaintiff-respondent. It has been noted in the judgment that the plaintiff and her witnesses including her father had differed on the amount of dower fixed and also that the dower so projected to the amount of Rs.4.95 lakhs by the plaintiff could not be proper, in view of the background of the families of the spouses. The appellant-defendant at the time of her marriage was admittedly doing some labour work and the plaintiff-respondent was also not stated to be very qualified, except being a daughter of a Patwari of the Revenue Department. In this situation of the matter, the right course adopted by the Trial Court was to fix the dower having regard to the means of the husband and status of the wife.
17. As agreed between husband and wife at the time of marriage contracted in the Nikahnama, the court can pass a decree only when the said amount was reasonable and if the amount was excessive having regard to means of the parties, the said amount cannot be decreed, as has been held by this Court in case titled "Syed Nissar Hussain vs Mst. Naseema", reported as 2010 Legal Eagle (J&K) 104. Relevant paragraphs 5 and 6 are extracted as under:
10 CFA No., 20 of 2015
"5.The dower is like any other debt and wife may, like any other creditor, institute a suit for dower and can obtain a decree against the assets of her husband. However, the dower is not a secured debt, it is actionable claim and right to dower is transferable. There is neither any minimum nor any maximum as regards the dower to be settled by a Muslim husband. However, there has been a practice to settle unusually large amounts as dower without any intention on the part of the bride and the bridegroom to either pay or recover such amounts. Such fictitious dowers are called Mehri Taljai. The practice of fixing unusually high amounts only to enhance prestige of the bride without any intention to pay such amount led to legislation in some princely stats of British India to legislate on the subject and carve out a role for qazi or Court to fix the reasonable amount. Such practice at times led to disastrous consequences for the legal heirs of the person settling high amount beyond his means and not even commensurate with his financial status, as Mehar or dower. Such legislation was made in the State of Oudh as back in 1876. Section 5 of Oudh Laws Act 1876 laid down that the Court is not to award the amount of dower stipulated in the contract of marriage but only such sum as "shall wife". The practice even finds mention in Futwa Alamgiri and in the Muslim countries the Qaazi was given the power to reduce excessive dowers. The State of Jammu and Kashmir was the second State to take notice of the practice and enact the Jammu and Kashmir Muslim Dower Act 1920 AD.
6. Mehar or dower is an obligation imposed upon the husband as a mark of respect to the wife. It is not like consideration in case of a contract in the strict sense of the term. If for some reason Mehar (dower) is not settled or remains unspecified at the time of marriage the marriage is not rendered invalid but the law presumes settlement of 11 CFA No., 20 of 2015 dower estimated on settled principle. It nonetheless is not a purely optional act but is absolutely obligatory. In such cases, where no dower is fixed at the time of marriage or has not been specified intentionally or intentionally left indeterminate the wife becomes entitled to the Mehar Misal i.e. the dower of her equals or the customary dower. In such cases, the Mehar or dower fixed in case of female paternal relations of the woman assumes significance. The husband may settle any amount he likes by way of dower upon his wife. But once an amount is settled, there is no escape from its payment to the wife. The amount of dower may be split in two parts-the prompt or moujal (to be paid with ijelat) and deferred or movajal. The prompt or moujall part of the dower is paid immediately after the marriage or as and when demanded by the wife, whereas, as a matter of practice, deferred or movajal is paid at the time of dissolution of the marriage. The wife nonetheless may ask for the deferred or movajal part of the dower when the marriage is not dissolved but of course at a later stage. "
18. In view of the background of both the spouses and their families at the time of contracting of their marriage, the dower amount fixed by the Trial Court for an amount of Rs.2.00 lakh, in the considered opinion of this Court is also on a higher side, the same requires to be slashed down. Having regard to the background of the spouses and their respective families hailing from far-flung areas of hilly District of Rajouri an amount of Rs.1.00 lakh as dower could be a just and reasonable amount, with reference to the means of husband and status of wife.
19. Having regard to the foregoing discussions and the observations made hereinabove, this Court is of the considered opinion that the judgment and decree passed by the Trial Court requires modification to the amount of 12 CFA No., 20 of 2015 Mehar (Dower). The appeal is, thus, allowed to this extent and the impugned judgment and decree are ordered to be modified as under:-
"the respondent-plaintiff is found entitled to an amount of Rs.1.00 lakh as deferred dower outstanding against the appellant-defendant which he shall be liable to pay to the respondent-plaintiff, along with costs of the suit. No order as to costs in this appeal."
20. In view of the modification in the impugned judgment and decree with regard to the amount of the Mehar (Dower), the decree sheet shall be drawn accordingly.
21. The appeal is, accordingly, disposed of.
(M A Chowdhary) Judge JAMMU 06.03.2024 Vijay Whether the order is speaking: Yes Whether the order is reportable: Yes