Bombay High Court
Kalim Uz-Zafar Shaikh Hasan vs Mrs. Razia Kalim Shaikh on 2 September, 1999
Equivalent citations: I(2001)DMC420
Author: R.J. Kochar
Bench: R.J. Kochar
ORDER
1. This appeal is filed against the judgment of the Family Court No. 1, Pune in Petition No. A469 of 1994 on 12th May, 1997.
2. The respondent-wife has filed the said petition seeking divorce under the provisions of the Dissolution of Muslim Marriages Act, 1939. For this purpose she was mainly relying on the ground of cruelty as set out in Clause VIII of Section 2 of the said Act. More of physical cruelty what is pleaded is mental cruelty.
3. We would have certainly gone into the details of the matter but for the fact that by getting his written statement amended, the appellant-husband has included therein a contention of disputing the parentage of the youngest child, Ms. Rahat aged about 1 year, out of 3 children. Original written statement was filed on 27th August, 1994 and this amendment was sought on 14th June, 19%.
4. The birth date of the child is 28th June, 1993 and according to the respondent-wife the appellant-husband has visited India in the month of October, 1992. It is an admitted position that for past 8 years before filing of the petition, the husband was staying in Saudi Arabia where he was earning handsomely. He was remitting periodical amount in the bank account in the category of N.R.E. This account was operated by the respondent-wife.
5. The couple were living happily together all throughout and has three children as stated above. However, on his return from Saudi Arabia, when the appellant-husband tried to ascertain the handling of the money that he has sent, he felt that he has been cheated. The amount was given either to the parents of the respondent-wife and the particular point of friction was with regard to giving of some amount to one Mr. Amin Shaikh. This apparently led the husband to suspect the marital fidelity of the respondent-wife. This would explain the said amendment, copy of which is to be found at pages 77 onwards of the paper book.
6. When the wife has come out with a case of husband having come to India in October, 1992, the appellant-husband could have refuted this case of the respondent-wife by producing passport and other relevant documents showing his entry into and exist out of the country. Except for making oral assertions that he visited the country in January, 1992, he did not produce any documents.
7. When best possible evidence with the appellant has not been produced and when documentary evidence is available, he is trying to rely only upon oral assertions obviously he would fail.
8. With regard to the cruelty, therefore, in our opinion this singular contention would be enough especially when cruelty is alleged by conduct on the part of the wife at the instance of the husband. The other relevant material no doubt is there which has been considered by the learned Judge in his detailed judgment.
9. The friction between the two parties had led to filing of criminal complaint against the appellant and the respondent-wife as also the said Mr. Amin Shaikh. However that is besides the controversy between the parties so far as the dissolution of marriage is concerned.
10. The learned Judge, who gets the benefit of seeing the witnesses deposed before him, after thoroughly discussing the same, has held in favour of the appellant before him i.e. the wife and has granted decree of divorce.
11. The learned Advocate for the appellant-husband had a point with glad to other ground of not providing maintenance as also not performing his marital obligations in respect of first two years' period as provided and in respect of second three years' period that is provided in the Act. Admittedly when the petition was filed neither of the said two periods were over. The learned Judge for the appellant is, therefore, right that neither of these grounds were available to the respondent-husband. The learned Trial Court Judge has tried to work out the position at the time when he was delivering the judgment and on that basis he has categorically expressed himself that the petition having been filed in the year 1994, the period is made out. This is not a correct approach. The position has to be counted on and from the date of filing of petition. Going back to a point of time as required by the relevant provision of the Act.
12. Having said this about the judgment of the Trial Court on the remaining part of the judgment, in our opinion nothing can be said against it. The ground of cruelty has clearly been established. The decree of divorce has to be sustained.
13. About maintenance also nothing has to be said because a figure of Rs. 750/ - per month is shown to be the monthly maintenance. In our opinion, therefore, there is no substance in the appeal. The same is dismised with no orders as to costs.