Delhi District Court
Shri Rahul Malik vs Mst. Mansoora on 1 March, 2012
IN THE COURT OF SHRI RAJ KUMAR: JSCC: ASCJ: GUARDIAN JUDGE
(NORTH EAST) KARKARDOOMA COURTS, DELHI.
Suit No. 379/10
Unique Case ID No. 02402C0344052010
Shri Rahul Malik
s/o Shri Mehfil Malik
r/o E44/B281, Dilshad Colony,
Delhi110095. ........... Plaintiff.
VERSUS
Mst. Mansoora
w/o Shri Rahul Malik
r/o N137/52, opposite C531,
Jahangir Puri, Delhi. ......... Defendant.
Date of institution of the suit : 09.12.2010
Date on which order was reserved: 08.02.2012
Date of decision : 01.03.2012
SUIT FOR DECLARATION OF DIVORCE
JUDGMENT
The facts in brief, necessary for the disposal of the present suit filed by the plaintiff as disclosed in the plaint are that the plaintiff was married with the defendant on 04.06.2007 according to Muslim rites and customs in a simple manner without any dowry. It has been further stated that the defendant came to the plaintiff to join her matrimonial home at Delhi but the attitude and behaviour of the defendant was not good, the defendant misbehaved with the plaintiff and did not change her behaviour despite repeated requests by the plaintiff. It has been further alleged that the defendant under the influence of her parents ignored and ill treated the plaintiff, never paid any regard to the plaintiff or his parents. It has been further stated that the defendant wanted to extort money from the plaintiff despite the fact that the plaintiff gave a lot of love and affection to the defendant and provided all the facilities as per his status and resources. It has been further stated that the defendant threatened the plaintiff that she will implicate the whole family of the plaintiff in false case of dowry demand. It has been alleged that the defendant many a times left the matrimonial home without the consent and permission of the plaintiff or his family members. It has been further stated that the marriage was duly consummated and a child was born out from the wedlock of the plaintiff and the defendant who is with the defendant. It has been further stated that in the year 2008, the defendant left the matrimonial home without the consent and permission of the plaintiff with her brother and brotherinlaw and since then, the defendant has not joined the marital life with the plaintiff. It has been further stated that the defendant has filed two false cases, one u/s 125 of the Cr. P.C. and the other u/s 12 of the Protection of Women from Domestic Violence Act. It has been further stated that the plaintiff filed a case for restitution of the conjugal rights and the matter was settled with the defendant before he mediation cell, Karkardooma Courts, Delhi on 31.05.2010. It has been further stated that as per the said settlement, the defendant joined the marital life with the plaintiff on 25.07.2010, in a separate rented accommodation at Pappu colony, P.S. Nand Nagri, Delhi. It has been further stated that on 28.07.2010, the defendant slipped, got injuries when the plaintiff had gone to his job. It has been further stated that when the plaintiff returned to his house on 28.07.2010, the defendant made a false complaint to P.S. Nand Nagri, Delhi, the defendant also called her mother and BEHNOI (brotherinlaw) and on the same day, the defendant left the matrimonial home without any reasonable cause and reason. The case of the plaintiff is that he announced Talaq to the defendant on the same date i.e. on 28.07.2010, according to Muslim rites and customs by orally pronouncing talaq thrice in the presence of marginal witnesses on account of misconduct and behaviour of the defendant. It has been further stated that the plaintiff has already divorced the defendant and now there is no relationship of husband and wife in between the plaintiff and the defendant. It has been further stated that the plaintiff is ready to give the maintenance for the period of IDDAT and MEHAREMUAJJAL has already been paid to the defendant. It has been further stated that the plaintiff has already sent the maintenance for the period of IDDAT i.e. Rs.1700/to the defendant vide cheque no. 447969 drawn on SBI dated 14.09.2010 through speed post. It has been further stated that the plaintiff also sent a legal notice to the defendant on 05.08.2010 by registered AD and UPC alongwith the copy of the declaration of divorce. It has been further stated that the plaintiff has suffered irreparable loss and money, mental agony and social respect on account of the illegal acts of the defendant and hence the present suit.
On the basis of the abovesaid allegations as contained in the plaint, the plaintiff has prayed for a decree of declaration of divorce in favour of the plaintiff and against he defendant declaring that the plaintiff has announced divorce to the defendant. The plaintiff has also prayed for the costs of the suit as well.
2. Written statement has been filed on record by the defendant stating therein that the plaintiff has concealed the material facts from this court; the plaintiff cannot take advantage of his own acts of omission and commission; the present suit is without any cause of action and the plaint is liable to be rejected u/o 7 rule 11 of the CPC; present suit has been filed with the malafide intention to cause wrongful loss and injury to the defendant. The defendant has submitted that the defendant was subjected to cruelty and harassed for dowry by the plaintiff and his family members. It has been further stated that the plaintiff and his family members demanded a sum of Rs.20,000/ cash and a motorcycle from the defendant. It has been further stated that when the said illegal demand of the plaintiff was not met, the defendant was subjected to more inhuman behaviour by the plaintiff and his family members. It has been further stated that the defendant lodged a written complaint dated 15.07.2008. It has been further stated that the plaintiff was served with the notice from the Commission for Women before whom the plaintiff appeared and on false assurances, the plaintiff took the defendant back to her matrimonial home. It has been further stated that after 23 days again, the plaintiff raised his demand and the defendant was again thrown out of the matrimonial home in wearing clothes and she was not allowed to take any of her belongings. It has been further stated that all the dowry articles, ISTRI DHAN, ornaments etc. of the defendant are in the custody of the plaintiff. It has been further stated that the defendant filed a petition u/s 125 of the Cr. P.C. on 11.12.2008 against the plaintiff which was decided by the court of Shri Kamlesh Kumar, Judge Family Court, Rohini, Delhi on 19.11.2010 and the Hon'ble Court was pleased to grant maintenance at the rate of Rs.3500/ per month in favour of the defendant and her daughter. It has been alleged that the said orders were not complied by the plaintiff and as such, the defendant filed an execution petition which is still pending disposal. It has been further stated that after the said petition, the plaintiff and his family members hatched a conspiracy, induced to defendant to withdraw her case from CAW cell and the defendant was taken to her matrimonial home by the plaintiff with the assurance that she will be given due love, affection, care and respect in her matrimonial home. It has been further stated that for about one month, the behaviour of the plaintiff and his family members was normal but thereafter, they again started harassing and torturing the defendant. It has been further stated that on 22.05.2009, the plaintiff and his family members again demanded a motorcycle and Rs.20,000/ from the defendant and the defendant was given beatings by the plaintiff and his family members. It has been further stated that on 23.05.2009, the mother of the defendant alongwith two sisters and one neighbour came to meet the defendant and when the mother of the defendants asked the inlaws of the defendant as to why they had given beatings to the defendant, the inlaws, instead of giving any reply, started beating the defendant, her mother and sisters. It has been further stated that the neighbour who had accompanied the mother and sisters of the defendant, made a call at 100 number, the police reached at the spot, took the defendant, her mother and other relative to GTB hospital where MLC no. 2148/09 was conducted on the defendant. It has been further stated that on the abovesaid incident, no action was taken by the police and then the defendant made a complaint dated 28.05.2009 with P.S. Jahangir Puri with copies to DCP, Ashok Vihar and SHO P.S. Seema Puri narrating the said acts and conduct of the plaintiff. It has been further stated that as a counter blast to the said proceedings initiated by the defendant, the plaintiff filed a suit for Restitution of Conjugal Rights and ultimately, the matter was settled in the mediation cell, Karkardooma Courts on 31.05.2010. It has been further stated that the plaintiff agreed to take back the defendant on 25.07.2010 in a separate rented accommodation. It has been further stated that as per the settlement, the plaintiff withdrew his suit on 04.06.2010, paid a sum of Rs.15,000/ to the defendant and on 25.07.2010, the plaintiff took back the defendant to a rented accommodation. It has been alleged by the defendant that in the rented accommodation as well, the plaintiff repeated the abovesaid demand for dowry and the plaintiff also beaten the defendant. It has been further stated that the defendant was compelled to call her father on 28.07.2010 and when the father of the defendant reached the rented accommodation, he took the defendant alongwith him to P.S. Seema Puri on seeing the vulnerable condition of the defendant and lodged a complaint against the plaintiff at P.S. Seema Puri, took the defendant back with him to her maternal home. It has been further stated that the defendant lodged a complaint with CAW cell Peetam Pura, Delhi on 24.09.2010, narrating the abovesaid atrocities of the plaintiff. It has been further stated that the plaintiff is guilty of committing cruelty upon the defendant for his lust for money and dowry. It has been further stated that the plaintiff has no right to divorce the defendant arbitrarily without any reason or rhyme. It has been further stated that the notice has been served by the plaintiff only to save his skin and to avoid his liability towards the defendant for her maintenance. It has been further stated that the plaintiff is a notorious person having no respect for the law. It has been further stated that father of the defendant had given a sum of Rs.10,000/ in cash, Rs.10,000/ cash towards the Mehar, gold and silver jewellery and other house hold goods and spent more than Rs.1 lakh in the marriage of the defendant. It has been further stated that the female child was born on 24.10.2008 from the wedlock of the plaintiff and the defendant who is presently in the care and custody of the defendant. Rest of the contents of the plaint have been denied and it has been prayed that the suit of the plaintiff be dismissed with costs.
3. Replication has been filed on record by the plaintiff reiterating and reaffirming the stand as taken by the plaintiff in the plaint and denying the contents of the written statement.
4. From the pleadings of the parties, the following issues were framed vide orders dated 26.03.2011.
1) Whether the petitioner has concealed the material facts from this court ? OPD
2) Whether the petitioner is entitled for declaration of divorce as prayed for by the petitioner in the present petition ? OPP
3) Relief, if any.
In order to prove their respective cases, the plaintiff has examined himself as PW1, two more witnesses Shri Aladeen as PW2 and Shri Sheikh Mansoor as PW3 who are the witnesses to the declaration of divorce. The defendant has examined herself as DW1. The detailed testimonies of these witnesses shall be discussed during the later part of this judgment.
5. I have carefully gone through the entire material on record and heard the rival submissions of Ld. counsels for both the parties. The plaintiff and the defendant as well have also filed on record their written final arguments. I have also carefully gone through the written final arguments filed on record by the parties.
6. My issuewise findings on the abovesaid issues are as under:
Issues No. 1 and 2.
Both these issues are taken up together as the same are connected interse and overlap each other. The onus to prove the issue no.1 is upon the defendant, whereas the onus to prove the issue no.2 is upon the plaintiff.
The factual controversy has already been narrated herein above. Now let us discuss the evidence led by both the parties in support of their respective stands.
The plaintiff has examined himself as PW1 and in his evidence by way of affidavit, he has reiterated and reaffirmed the stand as taken by the plaintiff in the plaint. He has filed on record the settlement dated 31.05.2010 as Ex. PW1/A, photocopy of the cheque no. 447969 as mark A, receipt of speed post as Ex. PW1/B, legal notice dated 05.08.2010 as Ex. PW1/C, postal receipt of speed post as Ex. PW1/D, copy of declaration of divorce/ talaqnama dated 04.08.2010 as Ex. PW1/E. In the cross examination, PW1 has admitted that he was married with the defendant on 04.06.2007, a female child was born out of the wedlock of the plaintiff and the defendant; the defendant lodged a complaint with CAW cell, Peetam Pura on 16.07.2008. The plaintiff has admitted the filing of the petition u/s 125 Cr. PC by the defendant, filing of the suit for Restitution of Conjugal Rights by him, the settlement in that petition for Restitution of Conjugal Rights. The plaintiff has admitted that as per the settlement, he alongwith the defendant started residing in the rented accommodation on 25.07.2010 at a monthly rental of Rs.700/. The plaintiff has further stated that on 28.07.2010, the defendant alongwith her family members picked up a quarrel with him and also beaten him but he had not called the police. The plaintiff has further stated that on 28.07.2010 itself he announced talaq to the defendants in the presence of two witnesses.
The plaintiff has further examined Shri Aladdin as PW2 and Shri Sheikh Mansoor as PW3, both of whom are the witnesses to the declaration of divorce / talaqnama dated 04.08.2010 Ex. PW1/E on record. Both these witnesses in their evidence by way of affidavits, have stated that the plaintiff announced the divorce to the defendant on 28.07.2010 according to the Muslim rites and customs in their presence and the said declaration vide Ex. PW1/E is duly signed by them.
In the cross examination PW2 has stated that he is not a summoned witness and he has come to the court to depose as a witness at the instance of the plaintiff. PW2 has admitted that he is neighbour of the plaintiff. PW2 has further stated that he is in the business of KABARI. PW2 has further stated that on 28.07.2010 he had seen the plaintiff and the defendant quarreling with each other in front of the house of the plaintiff.
In the cross examination PW3 has stated that the plaintiff is his SALA (brotherin law). PW3 has further stated on 28.07.2010, he was at the house of the plaintiff as he had gone there to bring back his wife. It has been further stated that he had visited the house of the plaintiff on 28.07.2010 at about 7.30/8.00 am. He has further stated that at the time of signing of his affidavit, he himself, the plaintiff, the other witness namely Shri Aladdin and the Advocate of the plaintiff were present.
The defendant has examined herself as DW1 and in her evidence by way of affidavit, she has reiterated and reaffirmed the stand as taken by the defendant in the written statement. She has filed on record the photocopy of the complaint dated 16.07.2008 as mark A, certified copy of the orders dated 19.11.2010 passed by Shri Kamlesh Kumar, Judge Family Courts, Rohini as Ex. DW1/1, copy of the MLC dated 23.05.2009 as mark B, photocopy of the complaint dated 28.05.2009 as mark C, the settlement date 31.05.2010 by the Delhi Mediation Center, KKD courts, as Ex. DW1/2, the complaint dated 28.07.2010 as Ex. DW1/3, complaint dated 24.09.2010 as Ex. DW1/4, photocopy of the reply dated 19.08.2010 the legal notice as mark E. In the cross examination DW1 has stated that she was married on 04.06.2007. DW1 has further stated that after a span of approximately 45 months after the marriage, she left the matrimonial home. By way of volunteer, the defendant has stated that she was turned out of the matrimonial home after giving beatings. DW1 has admitted it to be correct that on that day she was residing in a jhuggi with her parents. DW1 has admitted it to be correct that plaintiff was also residing in his jhuggi and that the plaintiff resided with her twice separately. DW1 has admitted it to be correct that the plaintiff paid an amount of Rs.5000/ in the petition u/s 125 of the Cr. P.C., an amount of Rs. 15000/ in the petition for Conjugal Rights. DW1 has admitted it to be correct that on 25.07.2010, the plaintiff took her and started residing separately in accordance with the compromise arrived at in the petition for Conjugal Rights. By way of volunteer, DW1 has stated that she was again given beatings by the plaintiff. DW1 has further stated that she was given the beatings by the plaintiff on 28.07.2010, the neighbours had called her parents but her mother only had come there. DW1 has denied the suggestion that on 28.07.2010, she suffered leg injury on account of slipping. By way of volunteer, DW1 has stated that the injury was sustained by her on account of the beatings given by the plaintiff. DW1 has denied the suggestion that on 28.07.2010, she was given talaq by the plaintiff by announcing the talaq verbally three times. DW1 has admitted it to be correct that she has been given talaq in writing by the plaintiff. By way of volunteer, DW1 has stated that the said talaq is a forged one and she does not want to give the talaq to the plaintiff. DW1 has admitted it to be correct that she has received the cheque for the period of IDDAT. By way of volunteer, the defendant has stated that the cheque was not got encashed by her and the same has been retained by her as it is. DW1 has admitted it to be correct that in the execution petition arising out of the proceedings of 125 Cr. PC, she has been recently given the amount of Rs.10,000/ by the plaintiff. By way of volunteer, DW1 has stated that a huge amount of Rs.1.25 lakhs is due toward the plaintiff.
In the written final arguments filed on record by the plaintiff, it has been argued that the plaintiff had divorced the defendants according to Muslim rites and customs. It has been further stated that on the one hand, the defendant has stated in the written statement that on 28.07.2010, her father reached at the matrimonial home but in her cross examination she has stated that his mother had come there. It has been further argued that defendants has admitted the case of the plaintiff in the cross examination. It has been argued that the plaintiff has been able to examine both the witnesses to the declaration of divorce and as such, the plaintiff has been able to prove his case.
Whereas on the other hand, in the written final arguments filed on record by the defendant, it has been argued that in the plaint filed on record, the plaint has stated that on 28.07.2010, the defendant had fallen and sustained injuries whereas in the cross examination the plaint had stated that on that day the defendant picked up a quarrel. The thrust of the written final arguments filed on record by the defendant is that no divorce was given by the plaint to the defendant on 28.07.2010 and the declaration of divorce is forged and fabricated. Ld. Counsel for the defendant has relied upon the following authorities: (1) cited as AIR 2002 SC 3551 titled as Shamim Ara Vs. State of UP and Anr. wherein it has been held that: "(A) Muslim Law Talaq - Plea of previous divorce taken by husband in written statement in proceedings initiated by wife for maintenance Cannot at all be treated as pronouncement of Talaq by husband on wife on date of filling of written statement in Court followed by delivery of copy thereof to wife Neither marriage between parties stands dissolved on date of filing of written statement Nor does liability of husband to pay maintenance comes to an end on that day.
In the instant case the Muslim wife filed an application for maintenance under S. 125 for herself and her children. The husband filed a written statement on 05.12.1990 wherein he made certain generalized accusations against the wife and stated that ever since the marriage he found his wife to be sharp, shrewd and mischievous, accused the wife of having brought disgrace to the family, the husband stated that "the answering respondent, feeling fade up with all such activities unbecoming of the wifepetitioner, has divorced her on 11.07.87. The particulars of the alleged talaq are not pleaded nor the circumstances under which and the persons, if any, in whose presence talaq was pronounced have been stated. Such deficiency continued to prevail even during the trial and the husband, except examining himself, adduced no evidence in proof of talaq said to have been given by him on 11.07.1987. There are no reasons substantiated in justification of talaq and no plea or proof that any effort at reconciliation preceded the talaq.
Held, the talaq to be effective has to be pronounced. The term 'pronounce' means to proclaim, to utter formally, to utter rhetorically, to declare to, utter, to articulate. There is no proof of talaq having taken place on 11.07.1987. A mere plea taken in the written statement of a divorce having been pronounced sometime in the past cannot by itself be treated as effectuating talaq on the date of delivery of the copy of the written statement to the wife. The husband ought to have adduced evidence and proved the pronouncement of talaq on 11.07.1987 and if he failed in proving the plea raised in the written statement, the plea ought to have been treated as failed."
(B) Muslim Law Talaq Law as ordained by Holy Quran is (i) that 'talaq' must be for a reasonable cause; and (ii) that must be preceded by an attempt of reconciliation between her husband and the wife by two arbiters, one chosen by the wife from her family and the other by the husband from his If their attempts fails, 'talaq' may be effected." (2) cited as J.(1993) DMC 49 titled as Zeenat Fatema Rashid Vs. Md. Iqbal Anwar wherein it has been held that: "(i) Mohamedan law Talak Whether a Mohamedan husband can divorce his wife at his whim and caprice ? (No).
Held that under the Quran, the marriage state is to be maintained as far as possible and there should be conciliation before divorce (see note 354 of Vol. I of Holy Quran by A. Yusuf Ali).
Therefore, the Quran discourages divorce and it permits only in extreme cases after predivorce conference. Therefore, a Mohamedan husband cannot divorce his wife at his whim and caprice.
(ii) Family Courts Act, 1984 Section 7 Mohammedan law Talak Whether if divorce by talak is made arbitrarily, it should be treated as a spiritual offence ? (Yes)."
(3) cited as II (2000) DMC 99 titled as Zulekha Begum @ Rahmathunnisa Begum Vs. Abdul Raheem, wherein it has been held that: "(i) Mohammedan Law Section 310 Talaq : Conditions precedent:
Attempt for Settlement Prior to Divorce. Absence of evidence:
Talaq not valid in law Mohammedan husband cannot divorce his wife at his whim or caprice Divorce must be for reasonable cause It must be preceded by predivorce conference to arrive at settlement NO evidence on record adduced by parties before Court to show attempt was made for settlement between parties prior to divorce Talaq given by respondent to petitioner not valid in law." There cannot be any dispute with the proposition of law as laid down in the above stated authorities relied upon by Ld. Counsel for the defendant but it has to be seen that in AIR 2002 (SC) 3551, it was held that the particulars of the alleged talaq were not pleaded nor the circumstances under which and the persons if any, in whose presence talaq was pronounced were stated. Similarly, in the authority cited as Zeenat Fatema Rashid Vs. Md. Iqbal Anwar, it was held that under the Quran, the marriage state was to be maintained as far as possible and there should be a conciliation before divorce. It has been further held in the said authority that the divorce by way of talaq is made arbitrarily, it should be treated as a spiritual offence. Similarly in the authority titled as Zulekha Begum @ Rahmathunnisa Begum Vs. Abdul Raheem, it has been held that there should an attempt for settlement prior to divorce and there was no evidence in that case before the court to show attempt was made for settlement between the parties prior to divorce.
In the case in hand, it has to be seen that the filing of the petition u/s 125 of the Cr. PC, the filing of the petition u/s 12 of Protection of Women from Domestic violence Act, filing of the suit by the plaintiff for restitution of conjugal rights, the settlement arrived at in between the parties in the mediation cell, the rejoining of the parties on 25.07.2010 in a rented accommodation are admitted. The plaintiff in the evidence by way of affidavit, has alleged certain acts on the part of the defendant but in the entire cross examination, the abovesaid acts of commission and omission on the part of the defendant as alleged by the plaintiff have not been cross examined at all. The settled law is that if a part of the examinationinchief of a particular witness is left unexamined, then the same stands admitted. Further more, it has to be seen that declaration of divorce Ex. PW1/E on record is the material document in the present case.
Plaintiff has examined PW2 and PW3 who are the witnesses to the said declaration of divorce. Both the abovesaid witnesses in their evidence by way of affidavit has categorically stated that on account of the misconduct and misbehaviour of the defendant, the plaintiff had announced divorce to the defendant on 28.07.2010 according to Muslim rites and customs in their presence. Both these witnesses have stuck to their stand in their cross examination as well. Further more, it has to be seen that so far as the efforts for reconciliation are concerned, the defendant herself in the cross examination has categorically admitted that the plaintiff resided with her twice separately and on 25.07.2010, in accordance with the settlement the plaintiff took her and started residing separately in a rented accommodation.
In the light of the above discussion, I am of the opinion that the plaintiff has been able to prove his case and the defendant has been unable to prove that the plaintiff has concealed the material facts from this court. As such, I hereby decide issue no.1 against the defendant and issue no.2 in favour of the plaintiff.
Relief.
In the light of my findings upon the foregoing issues, I hereby pass a decree of declaration declaring that the plaintiff has announced divorce to the defendant. Keeping in view of the facts and circumstances of the case, no orders for costs are passed. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open court ( RAJ KUMAR)
on this 01st day of March, 2012. JSCC/ASCJ/G. Judge (NE)
Karkardooma Courts, Delhi.