Delhi District Court
Shri Hakim Masihuddin vs Shri Abdul Wahid S/O Sh. Abdul Khaliq on 20 August, 2010
IN THE COURT OF SH. SANJAY SHARMA, JSCC-CUM-ASCJ-
CUM-GUARDIAN JUDGE(WEST): DELHI
Suit No. 763/08
Unique Case ID No. 02401C1051722006
1. Shri Hakim Masihuddin
S/o Late Sh. Ahmed Bakhsh
2. Baby Rifat D/o Ishrat Bano & Abdul Wahid (Minor)
Through her natural Guardian/ next friend Grandfather
(maternal) Shri Hakim Masihuddin.
Both R/o E-60, Gali No.2, New Seema Puri,
(Near Machhli Market), Delhi-110 095.
At present residing at : H.No. 1831, Chatta Agha Jaan,
Kalan Mahal, Jama Masjid, Delhi-110006.
......Plaintiffs
Versus
Shri Abdul Wahid S/o Sh. Abdul Khaliq
R/o Z-44, DDA Flats, New Ranjit Nagar,
New Delhi.
.....Defendant
Date of institution of the suit : 14.11.2006
Date on which order was reserved : 23.07.2010
Date of decision : 20.08.2010
JUDGMENT
1. The plaintiffs filed a suit against the defendant for recovery of dower amount of Rs.20,000/- and dowry articles or equivalent amount together with interest @ 18% per annum w.e.f. June, 2002 till realization.
Suit No.763/08 Hakim Masihuddin vs Abdul Wahid Page 1/92. The case set out in the plaint is that Smt. Ishrat Bano was married to the defendant on 17.03.2002 as per Muslim Rites and Customs in Delhi. It is stated that a sum of Rs.20,000/- was fixed towards dower on demand. The plaintiff no. 1 is the father and the plaintiff no. 2 is minor daughter of Smt. Ishrat Bano. It is stated that the said marriage was the second marriage of Smt. Ishrat Bano and the defendant. It is stated that the plaintiff no. 2 was the daughter of Smt. Ishrat Bano from her first marriage and the defendant had accepted the plaintiff no. 2 as his own daughter at the time of Nikah in the presence of the witnesses and acknowledged the said fact by signing the Nikahnama. Smt. Ishrat Bano was subjected to physical and mental cruelty and therefore, she had to leave her matrimonial home in June, 2002. The defendant had not paid the dower amount to Smt. Ishrat Bano despite repeated requests during her lifetime. Smt. Ishrat Bano died on 17.01.2004.
3. It is further case of the plaintiffs that Smt. Ishrat Bano had made a Will in the presence of the witnesses on 13.12.2003 that after her death, dower amount, dowry articles and maintenance will be recovered by the plaintiffs from the defendant. Smt. Ishrat Bano had filed a petition under Section 125 of Cr.P.C., in which the plaintiffs have been impleaded as a party. The plaintiffs served a legal notice on 08.08.2006 on the defendant for recovery of the dower amount. The defendant in his reply to the said notice denied is liability to pay the dower amount. It is stated that the defendant has not returned the dowry articles as mentioned in Annexure
-A after the death of Smt. Ishrat Bano. The plaintiffs are legally entitled to recover the dower amount and dowry articles. It is stated that the defendant has refused to pay the dower amount and returned the dowry articles and therefore, the present suit for recovery of dower amount and dowry articles was filed by the plaintiff against the defendant.
Suit No.763/08 Hakim Masihuddin vs Abdul Wahid Page 2/94. in the written statement, the defendant controverted the averments made in the plaint. The defendant contended that there was no privity of contract between the plaintiffs and the defendant. The plaintiffs have no right to enforce the Nikahnama. The plaintiffs have no locus standi to file the present suit. It is stated that the plaintiffs were not the parties to the contract. It is stated that the Mehar amount as mentioned in the Nikahnama was not meant for the plaintiffs. It is further stated that the defendant has paid the Mehar amount to the deceased on 20.03.2002. It is stated that dower is the personal property of a Muslim woman and no other person can claim any right over it. It is stated that Smt. Ishrat Bano had neither executed any Will nor given any legal authority to the plaintiffs to claim the Mehar amount after her death. It is stated that the Mehar amount stands forfeited in view of the death of Smt. Ishrat Bano. It is stated that plaintiff no. 2 is not the daughter of the defendant and therefore, she has no right to raise any claim against the defendant.
5. The defendant has not disputed that he was married to Smt. Ishrat Bano as per Muslim Rites and Customs and the dower was fixed at Rs.20,000/-. The defendant has not disputed that the said marriage was the second marriage of Smt. Ishrat Bano and the defendant. The defendant has stated that he had never accepted or acknowledged the plaintiff no. 2 as his daughter. It is stated that the plaintiff no. 2 is the daughter of the previous husband of Smt. Ishrat Bano. It is stated that the defendant had filed a suit for restitution of his conjugal rights but during the pendency of the proceedings, Smt. Ishrat Bano died on 17.01.2004. It is stated that the defendant is the legal heir of Smt. Ishrat Bano and he is entitled to inherent the properties left by her. It is stated that Smt. Ishrat Bano was a T.B. patient and for that reason, she was divorced by her previous husband and thereafter, she married the defendant without any dowry articles. It is stated that it was a simple marriage. It is stated that the defendant is a handicapped person.
Suit No.763/08 Hakim Masihuddin vs Abdul Wahid Page 3/96. In the replication, the plaintiffs controverted the averments made in the written statement and re-affirmed the averments made in the plaint.
7. On the pleadings of the parties, the following issues were framed on 31.08.2007:
(1). Whether the plaintiff has concealed material facts, if so, to what effect? OPD (2). Whether plaintiff has no locus standi to institute the present suit? OPD (3). Whether plaintiff is entitled to the suit amount, if so, interest at what rate and for what period? OPP (4). Relief.
8. In the evidence, the plaintiff no. 1 appeared as PW3. PW1 is the Kazi. PW2 brought record from National Commission for Women. The defendant examined himself as DW1.
9. Ld. Counsel for the plaintiff argued that the defendant has not disputed the marriage and Nikahnama. He has argued that the defendant has not disputed the dower amount of Rs.2000/-. He argued that Smt. Ishrat bano had demanded Mehar amount during her lifetime. He referred proceedings of National Commission for Women Ex. PW2/1 in support of his arguments that the defendant no. 1 had agreed to pay the dower amount by way of installment of Rs.1300/- per month w.e.f. 13.11.2002. He further argued that the plaintiffs served a demand notice dated 08.08.2006 on the defendant. He argued that the defendant replied the said demand notice vide reply dated 29.08.2006. He argued that the defendant has not paid the dower amount and returned dowry articles despite service of demand notice.
Suit No.763/08 Hakim Masihuddin vs Abdul Wahid Page 4/910.Ld. Counsel further argued that the plaintiffs are entitled to receive the dower amount under Muslim Law. He also referred order passed by Ld. Metropolitan Magistrate in support of his argument that the petitioner no. 2 being daughter of Smt. Ishrat Bano is entitled to receive the Mehar amount. During the course of arguments, Ld. Counsel for the plaintiff has not pressed the Will pronounced by Smt. Ishrat Bano. He argued that the plaintiffs are entitled to recover the dower amount and dowry articles being her legal heirs. He argued that the defendant has failed to prove that he had the dower amount to Smt. Ishrat Bano during her lifetime.
11.Ld. Counsel for the defendant argued that the marriage of the parties was their second marriage. He argued that no dowry articles were given. He argued that the defendant had paid the dower amount to Smt. Ishrat Bano on demand during her lifetime. He argued that the plaintiff no. 2 is the daughter of Smt. Ishrat bano from her first marriage and the defendant is not her father. He argued that the Nikahnama is a forged and fabricated document. He argued that the Nikahnama was tampered after Rukhsati. He argued that there is no evidence that Smt. Ishrat Bano had left any article with the defendant. He argued that the plaintiffs have no authority and locus standi to institute the suit. He argued that dower was the personal asset of Smt. Ishrat Bano. He argued that Smt. Ishrat Bano died without giving any authority to any person to recover the dower amount. He argued that the plaintiffs has neither stated nor proved that Smt. Ishrat Bano had given any authority to them to recover the dower amount. He argued that the plaintiffs are not entitled to recover the dower amount. He argued that the DW1 had committee fraud by tampering with Nikahnama. He argued that the credibility of the PW1 is shrouded with suspicion. He argued that the proceedings before the NCW has no evidentiary value.
Suit No.763/08 Hakim Masihuddin vs Abdul Wahid Page 5/9ISSUE NO. 1:
12.Onus to prove the issue no. 1 was upon the defendant. In the written statement, the defendant raised preliminary objection that the plaintiffs have concealed material facts from the court. The defendant has neither stated nor demonstrated the facts concealed by the plaintiffs from the court. Accordingly, issue no. 1 is decided in favour of the plaintiffs and against the defendant.
ISSUE NO. 2:
13.Onus to prove issue no. 2 was upon the defendant. In the written statement, the defendant contended that there was no privity of contract between the plaintiffs and the defendant and the plaintiffs have no locus- standi to file the present suit. The case of the defendant is that the plaintiffs were not the parties to the Nikahnama nor the dower amount meant for them. It is further case of the defendant that the Mehar amount is personal and individual property of a Muslim woman and no other person can claim any right upon the dower amount.
14.Ld. Counsel for the defendant argued that the plaintiff no. 2 is neither legitimate or illegitimate daughter of the defendant. He argued that the plaintiff no. 2 has no right to claim dower amount. He further argued that the plaintiff no. 1 has no authority from the deceased to claim the dower amount. He argued that Nikahnama Ex. PW1/1 is a tampered document. He referred cross-examination of PW1 that no separate document with regard to the plaintiff no. 2 was executed at the time of the marriage and further, the fact that "second marriage along with minor children was written" after Nikah before Rukhsati with the another pen. He argued that the plaintiff no. 2 also has no right to maintain the presnet suit.
Suit No.763/08 Hakim Masihuddin vs Abdul Wahid Page 6/915.Ld. Counsel for the plaintiffs argued that the plaintiff no. 2 being the daughter of the deceased and the plaintiff no. 1 being her father can claim the dower amount and dowry articles under Muslim Law. He relied upon AIR 1937 Rangoon 175 that a Muslim father is expected to maintain the children of his wife in case he decides to take a widow as his wife.
16.It is an admitted fact that the defendant was married to Mst. Ishrat Bano on 17.03.2002. It is also an admitted fact that the Nikahnama Ex. PW1/1 was executed at the time of the marriage. It is also an admitted fact that the dower amount of Rs.20,000/- was fixed at the time of marriage, which was payable on demand. It is also an admitted fact that the marriage of Mst. Ishrat Bano was subsisting with the defendant till her death on 17.01.2004. It is also an admitted fact that the plaintiff no. 2 is the daughter of Mst. Ishrat Bano from her first marriage.
17.Mehar or dower is a sum of money which the wife is entitled to receive from the husband in consideration of the marriage. Under Mohmadan Law, dower is an obligation imposed upon the husband as a mark of respect to his wife. The amount of dower was fixed at Rs.20,000/- at the time of the marriage. The dower in question is the prompt dower as it was payable on demand. If the dower is not paid, the wife, and after her death, her heirs, may sue for it. The dower ranks as a debt and after death of the wife, her legal heirs can recover the same from the husband. It is an admitted fact that at the time of marriage, Mst. Ishrat Bano had a daughter from her previous marriage. Contention that it was not specifically mentioned that the defendant had given the undertaking and assurance to maintain the minor daughter of Mst. Ishrat Bano from her previous husband cannot further the case of the defendant. It is presumed that a person accepts the children from the first marriage as his own children.
Suit No.763/08 Hakim Masihuddin vs Abdul Wahid Page 7/918.In the present case Mst. Ishrat Bano had stayed with the defendant along with the plaintiff no. 2. Moreover, the plaintiff no.2 being the daughter of the deceased can recover the dower. Under Sunni Law, father and daughter are the legal heirs of a Muslim woman. The plaintiff no. 1 & 2 have the locus standi to recover the dower amount from the defendant. Accordingly, issue no. 2 is decided in favour of the plaintiff and against the defendant.
ISSUE NO.3:
19.Onus to prove the issue no. 3 was upon the plaintiffs. The plaintiff no. 1 appeared as PW3 in support of his case. He categorically stated in his examination in chief that the defendant had not paid the dower amount to the deceased during her lifetime. He proved the copy of demand notice dated 08.08.2006 Ex.PW3/1. The defendant did not reply the said notice. PW2 proved the proceedings of the National Commission for Women dated 24.10.2002 Ex. PW2/1. Perusal of Ex. PW2/1 shows that the defendant had appeared before the National Commission for Women on 24.10.2002 and made statement that he will pay the Mehar amount to Smt. Ishrat Bano by way of installment of Rs.1300/- per month w.e.f. 13.11.2002. The defendant in his cross-examination admitted that Smt. Ishrat Bano had made a complaint to the National Commission for Women and he had appeared before the said Commission. The defendant has also admitted in his cross-examination that he had signed the proceedings of the National Commission at point A & B on Ex. PW2/1. The defendant has failed to prove that he had paid the Mehar amount to Mst. Ishrat Bano on 20.03.2002. Moreover, if the defence of the defendant is seen in the light of the proceedings Ex. PW2/1, it is clear that the defendant had not paid the Mehar amount on 20.03.2002 and he had agreed to pay the Mehar amount by way of installment of Rs.1300/- per month w.e.f. 13.11.2002.
Suit No.763/08 Hakim Masihuddin vs Abdul Wahid Page 8/920.In so far as claim of the plaintiffs with regard to the dowry articles, it is evident that besides the list of dowry articles, there is no evidence on record that Mst.Ishrat Bano had any dowry articles with her. There is no evidence that the said articles were given to Mst. Ishrat Bano at the time of her marriage. Moreover, the plaintiffs had not made any demand for dowry articles in their legal notice dated 08.08.2006 Ex. PW3/1. the suit of the plaintiff is decreed in so far as dower amount is concerned.
21.The defendant has withheld the dower amount without any justification. Keeping in view the fact that the defendant is a handicapped person, simple interest @ 6% per annum is awarded from the date of the filing of the suit till realization of decreetal amount.
22.Accordingly, issue no. 3 is decided in favour of the plaintiffs and against the defendant.
RELIEF
23.Accordingly, the suit of the plaintiffs is decreed and a decree for recovery or Rs.20,000/- (Rupees twenty thousand only) together with pendente-lite and future interest @ 6% per annum is passed in favour of the plaintiffs and against the defendant.
24.No order as to costs.
25.Decree sheet be drawn accordingly.
26.File be consigned to Record Room.
Announced in the open court today the 20th August, 2010.
(SANJAY SHARMA) JSCC-cum-ASCJ-cum Guardian Judge (West),Delhi 20.08.2010 Suit No.763/08 Hakim Masihuddin vs Abdul Wahid Page 9/9