Delhi District Court
Mohd. Arif vs Mrs. Nasreen on 26 July, 2011
IN THE COURT OF CIVIL JUDGE04 (SOUTH), SAKET
COURT COMPLEX, NEW DELHI
Presided by: Ms. Vijeta Singh
M No. 4/10
Case ID No. 02406C0358762010
In the matter of:
Mohd. Arif
S/o Mr. Rafiq Ahmed
R/o F18/10, Shaheen Bagh, Abul Fazal,
EnclaveII, Jamia Nagar,
Okhla, New Delhi110025. ............Plaintiff
Versus
Mrs. Nasreen
D/o Rahis Ahmed
R/o A40/2, Ground Floor, Shaheen Bagh
Abul Fazal Enclave, PartiII, Jamia Nagar,
Okhla, New Delhi110025. ..........Defendant
Date of Institution : 02.12.2008
Date of Reserving of judgment : 07.06.2011
Date of Pronouncement of judgment : 26.07.2011
J U D G M E N T
M No. 4/10 1/13 pages Mohd. Arif Vs. Nasreen
1. The present suit has been filed by the plaintiff Sh. Mohd. Arif S/o Mr. Rafiq Ahmed, R/o F18/10, Shaheen Bagh, Abul Fazal, EnclaveII, Jamia Nagar, Okhla, New Delhi110025, against Smt. Nasreen D/o Rahis Ahmed, R/o A40/2, Ground Floor, Shaheen Bagh Abul Fazal Enclave, PartII, Jamia Nagar, Okhla, New Delhi110025, seeking a decree of judicial separation and declaration of divorce in favour of the plaintiff and against the defendant.
2. It is the case of the plaintiff that he got married with the defendant as per the Islamic rites and rituals on 04.05.2008 at Shaheen Bagh, Okhla, New Delhi. After the solemnization of the marriage the defendant resided at the matrimonial home for about 2 months at different times during which it is stated that no cohabitation took place. Thus, there is no issue out of the wedlock.It is stated that the defendant had fits and became unconscious whenever the plaintiff tried to establish a physical relationship. Thus, the plaintiff was mentally upset and disturbed. It is stated that when this problem was communicated to parents of the defendant, no efforts were made to resolve the same. The parents of the defendant on the contrary are stated to have threatened that if any untoward incident took place with the defendant, the plaintiff and his parents will be solely responsible for the same. It is stated that the defendant was suffering from fits even prior to the marriage and continued to suffer the same. It is stated that the marriage was performed by concealing this fact. Despite several meetings since no resolution could be arrived at the plaintiff is stated to have divorced the defendant on M No. 4/10 2/13 pages Mohd. Arif Vs. Nasreen 29.11.2008 by service of Talaq nama through his counsel vide speed post.
3. It is stated that cause of action for institution of the present suit arose on 04.05.2008 and again on 29.11.2008 when the Talaqnama was sent.
4. The suit has been contested by the defendant by way of the written statement filed on 19.03.2009 wherein preliminary objection has been taken that the suit has not been filed as per the High Court Rules and therefore, the suit should be dismissed. The factum of the marriage has been admitted by the defendant, however, the allegations that no cohabitation ever took place is denied. It is stated that after the Nikah, the parties lived together as husband and wife and also cohabited, although no issue was born. It is denied that at the time of the institution of the suit any divorce has taken place. It is also denied that the defendant is suffering from fits. It is stated that the defendant has always been in good health and has not been suffering from any disease. It is denied that the parents of the defendants had threatened the plaintiff and his parents for holding them responsible for any untoward incident to the defendant. It has been denied that any talks of amicable resolution of the problem has ever taken place. It is also denied that the alleged Talaqnama has no relevancy in the eyes of the Muslim law and Shariyat as the basic requirement of the Talaqnama has not been observed. It is further stated that during the plaintiff's stay in her matrimonial home she was subjected to cruelty for not having brought any dowry and no maintenance was provided to her. Petition under Section 125, Criminal Procedure Code, 1973 for M No. 4/10 3/13 pages Mohd. Arif Vs. Nasreen claiming maintenance and complaint under Section 12, the Protection of Woman from Domestic Violence Act, 2005 have been filed. The present suit is stated have been filed with the ulterior motives of ousting the plaintiff and depriving her of living a happy married life.
5. Replication was filed on 16.07.2009 wherein the averments of the written statement and contents of the plaint is reiterated. As regards the basic requirements of Talaq not having been fulfilled, it has been stated by the plaintiff that Talaqnama has been pronounced three times as per the Muslim law and the Shariyat and same came to the knowledge of the defendant through notice and also through the plaintiff at in proceedings before Crime Against Women Cell. It has been denied that any cruelty has been inflicted by the plaintiff.
6. Vide order dated 16.07.2009 following issues were framed :
1. Whether the plaintiff has no cause of action to file the present suit? OPD
2. Whether the plaintiff is entitled for the relief of judicial separation?OPP
3. Whether the plaintiff is entitled for the relief of declaration of divorce? OPP
4. Relief.
7. Plaintiff examined himself as PW 1 on 15.03.2011 and tendered Ex. PW 1/X along with documents. Ex. PW 1/A which is copy of English translation of Nikahnama and Ex. PW 1/B (Colly) and Ex. PW 1/B1 which are copies of service M No. 4/10 4/13 pages Mohd. Arif Vs. Nasreen of Talaqnama along with Talaqnama and receipt of speed post. In his cross examination it has been admitted by the plaintiff that there was no witness present at the time he gave Talaq. He has deposed that apart from epilepsy there was other ground for giving Talaq which he has mentioned in his affidavit. He has further stated that another reason for giving Talaq was the habit of the defendant to forget things. He has denied the suggestions that there was a demand for a car and Rs. 1,00,000/ cash as dowry from the defendant family members. He has admitted that proceeding under Section 498A, Indian Penal Code, has been initiated against him. He has denied the suggestion that the defendant was completely fine when she was residing with him. He has also denied that the defendant was treated with cruelty. He has denied that the Talaq has been given on baseless grounds. He has admitted that immediately prior to institution of the present suit defendant was residing with him till 27.11.2008. He has denied that the defendant continues to be his wife. Plaintiff evidence was closed vide a separate statement of the plaintiff on 05.03.2011.
8. In support of her contention, defendant examined herself as DW 1 and Sh. Rahis Ahmed as DW2 on 14.05.2011. DW 1 tendered Ex. DW 1/A along with documents Ex. DW 1/1 which is copy of FIR No. 55/09 and Ex. DW 1/ 2 which is copy of notice issued by Learned Metropolitan Magistrate under Domestic Violence Act. During her cross examination, DW 1 deposed that complaint before Crime Against Women Cell was filed in January 2009. She has denied the M No. 4/10 5/13 pages Mohd. Arif Vs. Nasreen suggestion that prior to the institution of the complaint she was divorced. She has denied the receipt of notice of Talaqnama dated 29.11.2008 on 30.11.2008. She thereafter has admitted that Talaq given by the plaintiff was in writing. She had denied the suggestion that she was suffering from epilepsy or that she had fits. She had denied that Ex. DW 1/X1 pertains to her. She has deposed that she was willing to reside with the plaintiff and for which she filed complaint before Crime Against Women Cell. She has admitted that dowry articles were deposited by the plaintiff in the Police Station Jamia Nagar and which were then collected by her parents. She has stated that she left her matrimonial home on 29.11.2008. She has stated that the plaintiff had demands for dowry from the very inception of marriage. She has denied the suggestion that FIR No. 55/09 and petition before the Learned Metropolitan Magistrate had been filed with ill motive.
9. DW 2, Sh. Rahis Ahmed father of the defendant denied that the defendant was an epilepsy patient or that no demands for dowry were made by the plaintiff or that the FIR and complaint before Crime Against Women Cell were filed as counter blast to the Talaq given by the plaintiff. He pleaded ignorance as regards any notice of Talaq dated 29.11.2008 having been received by the family members of the defendant on 13.11.2008. He has denied the suggestion that the family members of the plaintiff tortured and harassed the defendant. It is stated that subsequent to 29.11.2008 the defendant did not visit the house of the plaintiff and was not aware of the Talaq.
M No. 4/10 6/13 pages Mohd. Arif Vs. Nasreen
10. Defence evidence was closed vide a separate statement of defendant on 04.05.2011.
11. Final Arguments were heard on 7.06.2011.
12. Learned counsel for the plaintiff has argued that a valid divorce was granted by the plaintiff vide Ex. PW 1/B (Colly.) and Ex. PW 1/B1. It has also been argued that the factum of divorce has also been brought to the notice of the defendant during the pendency of the suit. Since, the parties are Sunni by faith and the Talaq was in writing, there was no requirement of any witnesses.
13. Learned counsel for the defendant has argued that the intention of the plaintiff for institution of the present suit is mala fide. He has drawn the attention of the Court to Ex. PW 1/A wherein the date mentioned is 29.11.2008 and the date of institution of the suit which is 02.12.2008. It has been argued that the plaintiff has not even waited for the legal notice to be served upon the defendant. It has also been urged by Learned counsel for the defendant that no reasonable cause has been given for pronouncement of Talaq. It has been argued that epilepsy cannot be said to be a sufficient ground for Talaq. It has also been argued that the nature of Talaq has not been mentioned. Further, it has been also argued that in the absence of proper communication the Talaq is not complete. It has also been argued that the present suit is a way adopted by the plaintiff to wriggle out of criminal allegations made against him.
M No. 4/10 7/13 pages Mohd. Arif Vs. Nasreen
14. In rebuttal it has been argued by Learned counsel for the plaintiff that the nature of Talaq is TalaqUlBiddat.
15. Vide the statement of Learned Counsel for the Plaintiff dated 21.07.2011, the relief qua judicial separation was abandoned.
16. On careful consideration of the documents on record and the arguments led by the parties, the issue wise findings are as under : ISSUE NO. 1 Whether the plaintiff has no cause of action to file the present suit?
OPD
17. The onus to prove this issue was upon the defendant. To discharge the onus, it was required of the defendant to show that at no point of time prior to the institution of the suit, the claim of divorce validly given by the plaintiff, was denied by the defendant as the plaintiff is seeking a declaratory decree. PW 1 in his cross examination has admitted the defendant has resided with him till 27.11.2008. Admittedly, the Talaqnama is dated 29.11.2008. The same has also been dispatched on 29.11.2008. Plaintiff has not placed on record any proof of service of the notice along with the Talaqnama upon the defendant prior to the institution of the suit. Admittedly, the only mode by which Talaqnama was sent to the defendant was by way of speed post. DW 1 and DW 2 have denied the receipt of the same. Thus, it has been proved that prior to the institution of the suit the M No. 4/10 8/13 pages Mohd. Arif Vs. Nasreen same was not received by the defendant. Even, in the plaint itself there is no averment to the effect that at any point of time the claim of the plaintiff was denied by the defendant.
18. During the course of arguments, it was suggested by Learned counsel for the plaintiff that the defendant had subsequent to the filing of the suit gained knowledge of Talaq which is now being disputed and hence, he is entitled to the relief claimed for. However, it is a well settled law that the rights of the parties stand crystallized on the day of institution of the suit and the plaintiff cannot now use the judicial process of the Court to obtain the relief sought for. It has been held in paragraph no. 7 in Dagdu Chhotu Pathan Vs. Rahimbi Dagdu Pathan (2002) 3 Mah LJ 602 as under :
"...e) the Court proceedings should be confined to the assertion of facts by parties and to the proof of facts so asserted or alleged and not for any other purpose specially for acknowledgment of declaration of divorce. The rights and interest of the parties cannot be jeopardized by a unilateral statement made during the course of proceedings by other party either orally or in writing."
19. Hence, the issue is decided in favour of the defendant and against the plaintiff.
M No. 4/10 9/13 pages
Mohd. Arif Vs. Nasreen
ISSUE NO. 2
Whether the plaintiff is entitled for the relief of judicial separation?
OPP
20. The issue is omitted as the relief has been abandoned by the plaintiff vide statement of his counsel dated 21.07.2011.
ISSUE NO. 3
Whether the plaintiff is entitled for the relief of declaration of divorce?
OPP
21. The onus to prove the issue was upon the plaintiff. To prove the same PW 1 was examined who has tendered documents Ex. PW 1/A which is a copy of English translation of Nikahnama and Ex. PW 1/B (Colly.) and Ex. PW 1/B1 which are copies of letter dated 29.11.2008 sent by counsel for the plaintiff and copy of the Talaqnama. He has deposed that no cohabitation has taken place with the defendant who is alleged to be suffering from epilepsy. In his cross examination, he has admitted that he has given Talaq to the defendant because she suffers from epilepsy and has a habit of forgetting things.
22. In "Shamim Ara Vs. State of U.P." AIR 2002 SC 3551(1), His Lordships have in great detail considered the judgments of various High Courts and also delved upon the enunciations in the Holy Quran on the concept of Talaq.
M No. 4/10 10/13 pages Mohd. Arif Vs. Nasreen
Acknowledging the dynamic nature of law and the requirement of shelving pedantic approach they have recognized that the law as ordained by Holy Quran is that (i). Talaq must be for a reasonable cause and (ii) must be preceded by an attempt of reconciliation between the husband and the wife by two arbiters, one chosen by the wife from her family and the other by the husband from his.
23. In "Dagdu Chhotu Pathan Vs. Rahimbi Dagdu Pathan" (2002) 3 Mah LJ 602, the full Bench of three Hon'ble Judges of the Bombay High Court held as under :
"21. It is popularly said that a Muslim marriage is nothing but a civil contract and a large section believes that the husband has an absolute freedom to dissolve the marriage without assigning reasons and at his free will. The Holy Quran as well as the other sources of Personal Law teach us that the process of reaching to the marital tie is certainly a civil contract but once the marriage is solemnised it becomes an institution life long for both husband and the wife and they do not live together by way of a mere contract but in a holy and sacred bond of love, care and mutual respect with equal status to both the partners. It happens, in some cases, that on account of incompatible temperament, extreme divergent upbringings, likes and dislikes or other physical incompatibilities or incapacities, the institution of marriage comes in peril. The Mahomedan Law does recognise the husband to be on a high pedestal than the wife but that by itself does not mean that he can check out his wife at his whim and caprice and without assigning any reasons.
Islam recognizes the principle of equity between the husband and wife during the subsistence of their marital tie. If the husband M No. 4/10 11/13 pages Mohd. Arif Vs. Nasreen and wife are not able to get along as partners or to cohabit with happiness, Islam does not force them to continue in such unhappy and unsettling conditions. However, both the parties are given some chance to reform or mend their ways so as to keep the institution of marriage in tact and this could be achieved by the process of reconciliation between the parties with the intervention of arbiters".
24. It has been further held after taking into consideration the relevant Quranic Verses that a Muslim husband can give Talaq (i). for a reasonable cause / grounds,
(ii). he has to follow the provision of arbitration and (iii). Talaqnama in breach of these conditions cannot operate as divorce.
25. Admittedly, in the present case TalaqUlBiddat has been given by way of Talaqnama for the reason that the plaintiff suffers from epilepsy and has a habit of forgetting things. Even though it is claimed by the plaintiff that Talaq has been given as per the Shariyat law, the deposition of the plaintiff is belied by the reasons for Talaq cited by him. Nothing has been brought on record by the plaintiff than a mere averment to show that assistance of arbiters one from his family and one from the family of the defendant was ever taken to effect reconciliation.
26. Even otherwise, relief of declaration is a relief of equity. The very fact that the plaintiff has been hasty in instituting the present suit as the same has been filed within three days of execution of Talaqnama with the defendant not having any opportunity to deny the claim of the plaintiff, disentitles the plaintiff to obtain M No. 4/10 12/13 pages Mohd. Arif Vs. Nasreen any relief from this Court.
27. For aforementioned reasons and for the findings on issue no. 1, this issue is decided against the plaintiff and in favour of the defendant.
RELIEF
28. In view of the findings on issue no. 1 and issue no. 3, in the considered opinion of this Court, the plaintiff is not entitled to any relief.
29. Suit is hereby dismissed.
30. Parties to bear their own cost.
31. File be consigned to records.
Announced in the open Court (Vijeta Singh)
on 26.07.2011 Civil Judge04 (South)
Saket Courts, Delhi.
M No. 4/10 13/13 pages
Mohd. Arif Vs. Nasreen