Allahabad High Court
Mohd. Imran vs Mehjabeen Khatoon on 20 November, 2019
Equivalent citations: AIRONLINE 2019 ALL 1956
Bench: Sudhir Agarwal, Rejeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on: 6.11.2019 Delivered on: 20.11.2019 Court No. - 34 Case :- FIRST APPEAL No. - 385 of 2018 Appellant :- Mohd. Imran Respondent :- Mehjabeen Khatoon Counsel for Appellant :- Vinod Kumar Dwivedi Counsel for Respondent :- Mahendra Pratap Yadav Hon'ble Sudhir Agarwal, J Hon'ble Rejeev Misra, J.
(Delivered by Hon'ble Rajeev Misra,J.)
1. Present first appeal has been filed by defendant-appellant Mohd. Imran challenging judgement and order dated 24.01.2018 passed by Principal Judge, Family Court, Basti in Case No. 236/11A/2014 (Mejahabi Khatoon Vs. Mohd. Imran) under section 3 of Muslim Women (Protection of Rights on Divorce) Act, 1986, whereby Court below has decreed suit of plaintiff-respondent and consequently directed defendant-appellant to pay a sum of Rs.1,98,000/-
2. We have heard Mr. Vinod Kumar Dwivedi, learned counsel for appellant and Mr. Pawan Kishore, Advocate, holding brief of Mr. Mahendra Pratap Yadav, learned counsel appearing for respondent.
3. Marriage of defendant-appellant Mohd. Imran (hereinafter referred to as appellant) was solemnized with plaintiff-respondent Mehjabeen Khatoon (hereinafter referred to as respondent) on 9.5.2010 in accordance with Muslim Rites and Customs. Appellant granted divorce to respondent on 19.10.2012 and sent copy of divorce document by registered post. It has also come in evidence that Civil Judge (Jr. Division), Basti, vide judgment dated 25.11.2013 passed in O.S. No. 850 of 2012 (Mohd. Imran Vs. Mejahabeen), annulled marriage of parties. Consequently matrimonial relationship between appellant and respondent came to an end in the year 2013.
4. Respondent filed Case No. 236/11A/2014 (Mejahabi Khatoon Vs. Mohd. Imran) under section 3 of Muslim Women (Protection of Rights on Divorce ) Act, 1986 claiming a sum of Rs.8,36, 208/- towards her dower and value of goods given by her parents at the time of marriage. According to plaint allegations, it was alleged that marriage between parties was settled on dower (Mahar) of Rs.25,786/-. At the time of marriage various articles were given to respondent by her parents and a list of same was prepared. List of gift items so prepared was duly signed by father of appellant as well as father of respondent. Pleadings regarding commission of physical and mental cruelty upon respondent were also alleged and ground of divorce pleaded was non fulfilment of additional demand of dowry made by appellant from respondent. According to respondent, appellant divorced her by way of oral divorce (Talaq) and papers regarding same were sent by registry on 19.10.2012. It was further alleged that father of respondent went to the house of appellant to patch strained relations but same did not materialize. Appellant is alleged to have persisted his demand for additional dowry. Respondent initiated proceedings under section 156(3) Cr.P.C. Notices were sent to appellant and thereafter matter was referred to Mediation. Accordingly, appellant and respondent came face to face with each other and again appellant reiterated that since respondent has been divorced by way of Triple Talaq, therefore, no amount towards Iddat was paid. On the aforesaid factual premise respondent filed above mentioned suit for recovery of money from respondent.
5. Suit filed by respondent was contested by appellant. He accordingly filed his objections dated 23.01.2015. Appellant admitted factum of marriage between parties. He further admitted that marriage between parties was agreed on dower (Mahar) of Rs.25,786/-. He also admitted that he has extended divorce to respondent. Aforesaid divorce was extended orally (by way of Triple Talaq) as such, there is no relationship of husband and wife between parties. It was pleaded by respondent that amount of prompt dower (Mahar) has already been paid before consummation of marriage. As such there is no issue regarding payment of prompt dower (Mahar). The gift items given by parents of respondent have already been returned. It was thus pleaded that no cause of action survives with respondent to maintain suit, hence same is liable to be dismissed.
6. On pleadings raised by parties, Court below framed following issues for consideration.
i). Whether plaintiff is divorced wife of defendant?
ii). Whether plaintiff is entitle to receive a sum of Rs.25,786/- towards dower (Mahar) from defendant or defendant has paid aforesaid amount?
iii). Whether plaintiff is entitle to receive any amount from defendant towards Iddat. If yes then what amount?
iv). Whether plaintiff is entitle to receive amount mentioned in plaint and goods detailed or the value thereof?
7. After aforesaid issues were framed, parties went to trial. Respondent in order to prove her case adduced herself as AW-1 and Gulam Ali (father of respondent) as AW-2. Respondent also adduced documentary evidence, which has been detailed at page 13 of paper book. Appellant in order to establish his defence nominated himself as OPW-1, Mohd. Umar (father of appellant) as OPW-2 and Mohd. Ali as OPW-3. Appellant also filed documentary evidence which also has been detailed at page 13 of paper book. However, OPW-2 Mohd. Umar did not appear before Court below to give his evidence.
8. Court below considered pleadings of parties and oral as well as documentary evidence filed by them. Upon perusal and appreciation of same, Court below answered above-mentioned issues one by one.
9. In respect of issue no.1 which relates to status of respondent, Court below concluded that it is agreed to both parties that marriage between them was solemnized but subsequently appellant has divorced respondent. Further more appellant filed copy of judgement dated 25.11.2013 passed by Civil Judge (Jr. Division), Basti in O.S. No. 850 of 2012 (Mohd. Imran Vs. Mehjabeen) whereby decree of annulment of marriage of parties has been granted. Aforesaid decree of divorce is admitted to both parties as such status of respondent is that of a divorced wife.
10. Issue no.2 was framed regarding right of respondent to receive dower (Mahar) of Rs.25,786/- from appellant and whether aforesaid amount has already been paid by appellant. Aforesaid issue was a contested issue as according to respondent dower (Mahar) was not paid, whereas according to appellant aforesaid amount of prompt dower (Mahar) had already been paid at time of consummation of marriage. Since pleadings between parties were at variance therefore, aforesaid issue could be established one way or other by oral evidence. The marriage document (Nikahnama) relied upon by appellant was accepted by Court below and amount of Mahar fixed therein was Rs.25,786/-. On the basis of aforesaid Court below concluded that amount of dower (Mahar) to be paid by appellant to respondent is Rs.25,786/-. According to appellant aforesaid amount had been paid before consummation of marriage. Since a positive assertion was made by appellant regarding payment of dower (Mahar), therefore, burden was upon appellant himself to prove the same. It is well established that he who asserts a positive fact, on him, lies the burden to prove the same. Appellant in his testimony has stated that dower (Mahar) was paid by way of jewellery prior to consummation of marriage. However, in cross-examination appellant stated that he does not understand the meaning of term "consummation of marriage". Subsequently it was stated by him that consummation of marriage means dissolution of marriage. He further stated in his cross-examination that in his statement-in-chief he has not stated that dower (Mahar) was paid through jewellery. However, Court below concluded that this witness has stated that prompt dower (Mahar) was paid by way of jewellery. OPW-2 Mohd. Umar in his statement-in-chief has stated that dower (Mahar) was paid by means of jewellery but before consummation of marriage itself. Upon evaluation of documentary and oral evidence Court below concluded that amount of dower (Mahar) has been paid at the time of marriage (Nikah) and therefore, respondent is not entitle to any amount towards payment of dower (Mahar).
11. Issue no.3 was framed with regard to quantum as well as payment of Iddat to respondent. Court below upon evaluation of evidence of parties arrived at the conclusion that since appellant has agreed to pay amount of Iddat therefore, Court below directed that appellant is liable to pay lump sum amount of Rs.18,000/- towards payment of Iddat to respondent.
12. In respect of issue no.4 regarding entitlement of respondent to receive the amount mentioned in plaint and goods detailed in list of goods, Court below scrutinized oral and documentary evidence on record threadbare. Upon evaluation of same, Court below observed that in the light of evidence adduced by parties, there is no reason to doubt the marriage document of parties i.e. Nikahnama. The motorcycle was purchased by family members of respondent and given to appellant. A bank draft of Rs.20,000/- was got prepared by father of respondent and given to appellant. However, respondent has not been able to prove the factum regarding payment of Rs.80,000/- in cash. Goods given in dowry are explicit from list of goods prepared. Same contains signatures of Mohd. Umar father of appellant. Though no attempt has been made by respondent to prove the list of goods by bringing in expert opinion, however, Court below has itself compared signatures of Mohd. Umar with his signatures on application under section 156(3) Cr.P.C. filed by respondent as such it was concluded by Court below that OPW-2 Mohd. Umar father of appellant has duly signed the list of goods. However, considering the inherent contradiction in testimony of OPW-1 and OPW-2, Court below opined that value of articles mentioned in the list of goods is exaggerated. Consequently Court below itself valued the articles mentioned in the list itself goods and accordingly awarded a lump sum amount of Rs.1,78,000/- to respondent towards value of goods given in dowry and Rs.20,000/- given by bank draft towards purchase of motorcycle, which was given in dowry.
13. With the aid of aforesaid findings Court below decreed suit filed by respondent by awarding a lump sum amount of Rs.1,98,000/- to be paid by (husband) appellant Mohd. Imran to (wife) respondent vide judgment and order dated 24.01.2018. Feeling aggrieved by aforesaid judgement and order passed by Court below appellant, who is the husband has come in first appeal before this Court.
14. Mr. Vinod Kumar Dwivedi, learned counsel for appellant has assailed impugned judgement and decree passed by Court below on the ground that findings recorded by Court below in respect of issue nos. 3 and 4, are manifestly illegal, perverse and erroneous. Detailing his arguments he submits that in view of exaggerated amount shown towards price of articles mentioned in list of goods and oral evidence of respondent and her witnesses not being cogent and reliable respondent could not prove the actual value of articles mentioned in list of goods. Therefore, Court below erred in awarding value determined by it regarding lump sum value of articles mentioned in list of goods. He thus submits that impugned judgment and order passed by Court below are liable to be set aside.
15. Mr. Mahendra Pratap Yadav, Advocate, appearing for respondent has supported impugned judgement and order on the strength of findings recorded therein as well as observations made by Court below. According to learned counsel for respondent, it was not the case of appellant before Court below that goods had not been given at the time of marriage. What was pleaded before Court below was that goods given in dowry have been returned. Since return of goods alleged by appellant was a positive assertion made on behalf of appellant, therefore, burden was on appellant himself to prove aforesaid assertions by evidence. However, appellant himself could not prove the same. Court below exercising its judicial discretion awarded lump sum amount towards cost of goods mentioned in list of goods As such, no infirmity can be alleged in the manner in which Court below has exercised its jurisdiction in awarding lump sum amount. Further as appellant himself could not prove positive assertion pleaded by him i.e. Goods were returned, no illegality was committed by Court below by upholding that goods were given in dowry to appellant at the time of marriage and respondent is entitled to receive the value of same.
16. After having heard learned counsel for parties at length and upon appreciation of material on record, we find that issue no.3 which relates to payment of amount towards Iddat was decided on admission made by appellant that he is ready to pay the amount. As such, appellant is now stopped by conduct from challenging his own admission before Court below. Consequently finding recorded by Court below on issue no.3 is not liable to be interfered with.
17. Issue no. 4 was whether gift items given to appellant vide list of gift items attached along with plaint. The only question which fell for determination before Court below was whether appellant who has alleged that goods received vide list of gift items/goods given to (husband) appellant have been returned. It was specific defence of appellant that goods have been received from his in-laws but same have been returned. Attention in this regard is drawn to testimony of OPW-3 Mohd. Ali, who in his testimony has admitted the factum regarding giving of certain goods. However, he has further stated in his testimony that goods given in dowry were taken back by respondent. However, aforesaid fact could not be established by him, by giving specific details regarding the same. Thus, appellant himself could not prove the very story he set out to prove. In view of above, Court below upon exercise of judicial discretion did not commit any illegality in awarding a lump sum amount of Rs.1,98,000/- towards value of goods so received by appellant. Aforesaid finding/conclusion drawn by Court below could not be demolished by learned counsel for appellant on any ground whatsoever. He could not establish that aforesaid findings recorded by Court below and conclusion drawn are unsustainable in law and fact as finding recorded by Court below in respect of issue no.4 are manifestly illegal, perverse or erroneous. Since the finding recorded by Court below on issue no.4 could not be demolished the conclusion therefore cannot be challenged.
18. In view of discussions made herein-above, appeal fails and is liable to be dismissed. It is accordingly dismissed. However, considering the facts and circumstances of the case, we quantify cost at Rs.20,000/- payable by appellant to respondent within a period of one month from today, failing which, Court below shall recover the same as if it was a recovery pursuant to an order passed by Court below itself.
19. Appeal dismissed.
Order date 20.11.2019 Prajapati