Kerala High Court
Pambodan Kunhimuhammed vs Nanambra Laila on 13 March, 2018
Author: K.Harilal
Bench: K.Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
&
THE HONOURABLE MR. JUSTICE A.M.BABU
TUESDAY, THE 13TH DAY OF MARCH 2018 / 22ND PHALGUNA, 1939
Mat.Appeal.No. 165 of 2006
AGAINST THE ORDER IN O.P.NO.167/2005 of FAMILY COURT, MANJERI
APPELLANT/RESPONDENT:
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PAMBODAN KUNHIMUHAMMED,
S/O. PAMBODAN HASSANKUTTY, VENNENKODE VEEDU,
KONDOTTY P.O., ERNAD TALUK, MALAPPURAM DISTRICT.
BY ADV.SRI.K.A.SALIL NARAYANAN
RESPONDENT/PETITIONER:
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NANAMBRA LAILA, AGED 26 YEARS,
D/O. MUHAMMED HAJI, VARIYATH VEEDU, MORAYUR AMSOM,
MONGAM DESOM, P.O.MONGAM, ERNAD TALUK,
MALAPPURAM DISTRICT.
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 13-03-2018, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
DST
K. HARILAL & A.M. BABU,JJ.
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Mat. Appeal No.165 of 2006
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Dated this the 13th day of March, 2018
J U D G M E N T
A.M. Babu,J.
Appellant is in appeal against a decree directing dissolution of his marriage with the respondent. Divorce was sought under section 2(ii),
(iv) and (viii)(a) and (f) of the Dissolution of Muslim Marriages Act (for short the Act). The family court granted the decree sought for by the respondent.
2. The case of the respondent may be briefly stated as follows: Her marriage with the appellant was solemnized on 13.5.1994. Two children were born in the wedlock. The respondent was given 75 sovereigns of gold ornaments, fifty thousand rupees and fifty cents of land as her patrimony. Every asset of hers including her gold ornaments were Mat. Appeal No. 165 of 2006 -: 2 :- taken and appropriated by the appellant. He physically and mentally harassed her demanding more dowry. He manhandled her in September, 1999. He took her and the children to her house and left them there. He thereafter did not provide maintenance to her and did not perform his marital obligations. The respondent had to file an application under section 125 of the Code of Criminal Procedure to get maintenance allowance for herself and the children. He occasionally paid maintenance and that too only when warrants were issued in execution applications. He married again. His second wife is Zeenath. He has totally ignored the respondent and her children. There is no point in keeping the marital relationship alive.
3. The appellant appeared through his power of attorney holder. The following contentions were Mat. Appeal No. 165 of 2006 -: 3 :- raised: There was no dowry for the marriage. No dowry was insisted on. The respondent was given only 50 sovereigns of gold ornaments by her father. A property measuring 50 cents was purchased in the name of the respondent by her father. There was no demand for dowry ever. The respondent had an ill will towards the appellant as the latter did not heed to the request of the former to construct a house in her property to shift residence. She and her people were behaving badly towards the appellant. She even filed a criminal case alleging commission of an offence under section 498A of the Indian Penal Code against him. He was acquitted by the court. He has been paying maintenance to her and the children as directed by the court. The respondent left the appellant six years ago without any reason whatsoever.
Mat. Appeal No. 165 of 2006-: 4 :-
4. The respondent gave evidence as PW1. Exts A1 and A2 were marked on her side. The power of attorney holder of the appellant deposed in court as RW1. Exts B1 and B2 were marked on the side of the respondent.
5. The family court found all the grounds in favour of the respondent. Therefore the proceedings ended in a decree directing dissolution of the marriage.
6. Heard Shri K.A.Salil Narayanan, the learned counsel for the appellant. The respondent did not choose to enter appearance in the appeal.
7. Parties are muslims. Their marriage was solemnized on 13.5.1994. To him and her were born two children. The children are with the respondent. The parties lived separately for over six years by the time the petition seeking divorce was filed. Mat. Appeal No. 165 of 2006 -: 5 :- The parties accuse each other responsible for such separate stay.
8. The respondent sought a decree of divorce under section 2 of the Act, precisely under clauses
(ii), (iv) and (viii)(a) and (f). If the husband neglects or fails to provide for the maintenance of the wife for a period of two years, it is a ground for divorce under section 2(ii). Failure to perform without reasonable cause the marital obligations of the husband for a period of three years is a ground under section 2(iv). If the husband habitually assaults the wife or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, it is a ground under section 2(viii)(a). The ground provided under section 2(viii)(f) applies in the case of a husband having more than one wife. If he has more than one Mat. Appeal No. 165 of 2006 -: 6 :- wife and if he does not treat her equitably in accordance with the injunctions of Quran, it is a ground for the neglected wife to seek dissolution of her marriage.
9. We prefer to consider the last ground first. Admittedly the appellant married a woman by name Zeenath. That was his second marriage. His first wife was the respondent herself.
10. The grievance of the respondent was that she was not being treated equitably in accordance with the injunctions of the Quran. A muslim husband is duty bound to maintain all his wives equally and equitably. If he does not do so, he acts contrary to the injunctions of the Quran. We wish to extract Quran at Ayat number 129 of the Surah titled An-Nisa.
ye are never able Mat. Appeal No. 165 of 2006 -: 7 :- to do justice between wives even if it is your arden desire;
but turn not away (from a woman) altogether, so as to leave her (as it were) hanging (in the air) if ye come to a friendly understanding, and practice self restraint, Allah is oft forgiving, most merciful The Quranic messages is loud and clear. More than one wife is permissible only if the man can be fair and just to all his wives. The Quran considers a husband to be a sinner if he does not treat his wives equitably. The husband is expected to treat all his wives equitably in accordance with the injunctions of the Quran. If he does not do that, the neglected wife is entitled to get her marriage Mat. Appeal No. 165 of 2006 -: 8 :- dissolved.
11. When you have two wives, you are supposed to maintain both equitably. The evidence suggests that the respondent was totally neglected by the appellant. Admittedly they stayed separately for over six years when the petition came. The evidence of PW1 (respondent) suggests that the appellant did not even provide maintenance to her and her children. She therefore filed an application before the magistrate under section 125 of Cr.P.C for maintenance allowance. The learned magistrate passed an order directing the appellant to pay maintenance to the respondent and her children. The very order passed by the learned magistrate is good evidence against the appellant that the respondent had grounds to live separately and receive maintenance allowance. Despite the order of the Mat. Appeal No. 165 of 2006 -: 9 :- learned magistrate, the appellant was never prompt in paying the maintenance allowance. PW1 swore in her proof-affidavit that she was not being given maintenance and that therefore she filed an application under section 125 of Cr.P.C. PW1 swore further that even after the order passed by the magistrate, maintenance was paid only when execution petitions were filed. The numbers of those execution petitions are also mentioned in the proof- affidavit of PW1. No damage was caused to the evidence of PW1 in cross-examination. In cross- examination too she maintained her stand. Even the appellant does not have a case that he was prompt in providing maintenance to the respondent. What is pleaded in the counter-statement of the appellant is that he has been paying maintenance in accordance with the order of the magistrate. That means he was Mat. Appeal No. 165 of 2006 -: 10 :- not paying anything before the order of the learned magistrate. The proof-affidavit of PW1 states that execution petitions had to be filed to realise the maintenance allowance ordered by the magistrate. The appellant is thus proved to be a person who was reluctant in maintaining the respondent. He was also reluctant to maintain his children born in the respondent. For getting maintenance, the respondent had to approach a court. Only when execution proceedings were taken, the appellant who was working abroad paid any amount as maintenance. At the same time he was living with his second wife and maintaining her and her children properly. Nobody has a case that the second wife is not maintained properly. Thus, it is proved that one wife was totally neglected and the other wife was properly maintained. It is thus proved that the appellant Mat. Appeal No. 165 of 2006 -: 11 :- who had more than one wife did not treat the first wife equitably in accordance with the injunctions of the Quran. That ground is well established by the respondent. No better way it can be established. We are in complete agreement with the family court. We confirm the finding of it.
12. If the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years, it is a ground for divorce under section 2(iv) of the Act. PW1 in her proof-affidavit swore that for the last six years the appellant did not do any of his obligations to the former including maintenance. She also swore that she had completely been deserted by him for the said period of six years. There has been no cross- examination on that aspect. In our opinion, there has been no rebuttal evidence also. There is only Mat. Appeal No. 165 of 2006 -: 12 :- one person in the world who could give rebuttal evidence against the evidence that he failed to perform his marital obligations. The person is the appellant himself. He did not choose to go to the witness box to speak to his version and face cross- examination. Instead, he deputed his brother and power of attorney holder to speak for him in court. The evidence of RW1 cannot at all be considered. His evidence cannot be treated as rebuttal evidence. For, whether the allegation that the husband has denied his marital obligations to his wife can be deposed in court only by the husband and not by a brother or power of attorney holder. We therefore totally eschew the evidence of RW1 on the point. We are satisfied that the appellant did fail to perform his marital obligations for over a period of three years. We do not see any reasonable cause for such Mat. Appeal No. 165 of 2006 -: 13 :- failure of the appellant. No cause is offered also as a reasonable cause. We confirm the said conclusion of the family court as well.
13. Last, physical and mental cruelty. PW1 swore in her proof-affidavit that she was physically tortured by the appellant demanding more dowry. She spoke that she was physically assaulted demanding `25,000/- more. It is also her evidence that he abused her oft. She referred to an incident in the month of November, 1999. She stated that the appellant and his people physically assaulted her, denied her food and closed her in a room. She spoke that all these resulted in termination of her pregnancy. If her allegations are true, she suffered a lot in her matrimonial home. The above evidence of PW1 considered by us was not effectively cross-examined. It seems that the cross-examiner Mat. Appeal No. 165 of 2006 -: 14 :- was satisfied when it was elicited that the appellant was acquitted in the criminal case charged under section 498A of IPC. Again, no proper rebuttal evidence was adduced. The appellant himself should have given evidence to rebut the evidence of PW1. It is true that the appellant was working abroad. To come over here and give evidence may be inconvenient for him, but certainly not impossible. He should have entered the witness box and faced cross-examination. Perhaps, he avoided the witness box to avoid cross-examination. We are satisfied that the respondent was physically and mentally tortured by the appellant demanding more money and gold ornaments as dowry. The appellant was indeed a cruel husband. The respondent is therefore entitled to get her marriage with the appellant dissolved on the ground of cruelty, both Mat. Appeal No. 165 of 2006 -: 15 :- physical and mental.
14. After having reappraised the facts, pleadings and evidence, we are in complete agreement with the findings reached by the family court and the decree granted by it. We find no reason whatsoever to interfere with the decree under appeal. The appeal deserves only a dismissal. We do not tax the appellant with costs only because the respondent did not choose to appear.
15. Dismissed. No costs.
Sd/-
K. HARILAL, JUDGE Sd/-
A.M. BABU, JUDGE Sl./DST/15.03.2018 //True copy// P.A. To Judge