HIGH COURT OF MADHYA PRADESH JABALPUR
F. A. No.687/2014
Syed Askari Hussain Rizvi
Smt. Saba Jafri Rizvi
Present : Hon’ble Mr. Justice S.K. Gangele, Judge
Hon’ble Smt. Justice Anjuli Palo, Judge
Whether approved for reporting: Yes/No
Name of counsel for the parties:
Shri M. Shafiquallah, learned counsel for the appellant.
Shri R.B. Dubey, learned counsel for the respondent.
Law laid down:-
Per : Smt. Anjuli Palo, J.
This appeal has been filed by the appellant/defendant being
aggrieved by the judgment and decree dated 26.07.2014 passed by 2 nd
Additional Principal Judge, Family Court, Bhopal in RCS No.371-A/2012,
whereby the learned Family Court has granted a decree of divorce in
favour of the respondent and directed the appellant to pay a sum of
Rs.2,51,786/- as dower (mehar) to the respondent.
2. It is not in dispute that marriage of the appellant/husband and
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respondent/wife was solemnized on 22.04.2010 as per Muslim Law and
Customs at Bhopal and dower/Mehar amount of Rs.2,51,786/- was settled
3. Facts of the case are that a petition for divorce and Mehar has
been filed by the respondent. The appellant and respondent are husband
and wife. Their marriage was solemnized on 22.04.2010 according to
Muslims Law and Customs. A sum of Rs.2,51,786/- was fixed as dower
(Mehar) between them. It was alleged by the respondent that dower amount
has not been paid by the appellant. After their marriage, the appellant and
his family members demanded a sum of Rs.5,00,000/- in cash and used to
assault her. Usually, they did not provide her food etc. The respondent also
came to know about some bad habits of the appellant and his family
members. She resided only for three months in her matrimonial house. In
the month of July 2010, she had left matrimonial house. Hence, she filed an
application for divorce before the trial Court.
4. The appellant denied all the allegations made by the respondent
and submitted that the respondent resided with him only for one month and
12 days. She wanted to marry another person. Her behaviour was not good
with the appellant and his family members. She used to quarrel with them on
small issues. Appellant was always ready to keep the respondent with him
because they have a girl child. Hence, the appellant has prayed to dismiss
the divorce petition filed by the respondent.
5. Learned trial Court has come to the conclusion that the appellant
had caused cruelty to the respondent/wife. He neglected to maintain his wife
and daughter. Therefore, decree of divorce has been passed by the trial
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Court in favour of the respondent/wife and also directed the appellant to pay
a sum of Rs.2,51,786/- as dower (Mehar) to the respondent/wife.
6. Against the aforesaid findings, the appellant/husband has filed
this appeal on the grounds that the respondent adduced evidence before the
trial Court without pleading. Such evidence has no value in the eye of law.
The trial Court emotionally passed the decree in favour of the respondent.
Further, the Family Court has no jurisdiction to grant a decree of dower
(Mehar) in view of Section 3(III) of Muslim Women (protection of Rights on
Divorce) Act, 1986. Hence, decree passed by the trial Court was without
jurisdiction and it is null void. Therefore, it is liable to be set aside.
7. We have heard learned counsel for both the parties at length
and perused the record.
8. It is not in dispute that marriage of the appellant and
respondent was solemnized on 22.04.2010. The trial Court found that the
appellant harassed the respondent for dowry. The respondent deposed that
he and his family members used to follow western culture like drinking liquor
and dancing with other men in the hotels. She was not willing for it. When
the respondent refused to do so, the appellant and his family members
9. We find that there is evidence on record to establish that the
appellant went to Dubai alone leaving his wife at Hyderabad with his family
members. We think that it is false allegation against the appellant because
the respondent (wife) stated in her chief-examination that after 38 days from
marriage, the appellant went to Dubai. Their marriage was solemnized on
22.04.2010. She left her matrimonial house on 10.7.2010 till the appellant do
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not come back from Dubai to accompany her. Therefore, we do not rely on
the testimony of the respondent.
10. We also find that the appellant has failed to establish that the
respondent used to quarrel with him and his family members. In this regard,
he has not deposed any thing against the respondent. He only deposed that
the respondent gave birth to a female child during April of 2011 at Bhopal
and at that time, he came at Bhopal and requested the respondent to
accompany him to go to Hyderabad, where family members of the
respondent were residing but the respondent refused it. In cross-
examination, he admitted that notice for residing together has not been sent
by him to the respondent nor he filed any petition for restitution of conjugal
rights against the respondents.
11. The respondent has made many allegations against the
appellant. Particularly (i) to follow western culture, (ii) to pressurize her for
abortion, (iii) to give her divorce but such allegations are not pleaded in her
divorce petition. This fact was ignored by the learned trial Court.
12. We found an agreement Ex.P/8 on record, which was executed
by the appellant on 23.5.2011 at Bhopal. Respondent -Smt. Safa Jafri (AW-1)
and Aaftab Haidar (AW-2) have also stated about it. From agreement Ex.P/8,
it is revealed that the appellant assured his wife to live according to her wish.
In Ex.P/8, we do not find any allegation as referred in earlier paragraph 11,
particularly relating to cruelty against the appellant. It appears that actually
the respondent was mainly aggrieved with the parents of appellant. There is
a small issue for “non adjustment” has been arises between them.
13. In Ex.P/8, it is also mentioned that the appellant will reside at
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Bhopal. Smt. Safa Jafri (PW-1) and her maternal uncle Aaftab Haidar (PW-2)
deposed that the appellant ousted the respondent from his house. On the
other hand, in para 5, the respondent has stated that she was ousted by her
in-laws’ for demand of dowry. When she informed about the incident to her
husband on phone the appellant/husband told her to obey his parents
otherwise she may go to Bhopal. Then, she informed the said incident to
her Mama and Mama came to Hyderabad. She came back to Bhopal on
10.7.2010 with them. For this incident, in agreement Ex.P/8 it is narrated by
the appellant that his parents harassed his wife so he directed to his wife to
go back at Bhopal. In para 15, the respondent admitted that on 01.10.2011
when she came to Bhopal, the appellant was not in India.
14. In para 13, Aftab Hyder (AW-2) admitted that his brother
Kamjan booked tickets for Hyderabad on 4.6.2010 for journey i.e. on
9.7.2010 and for returning journey i.e. on 12.7.2010. Ticket was booked on
4.6.2010. It was preplanned that they took back the respondent from
Hyderabad. This statement corroborate the testimony of the appellant. The
appellant also stated that after birth of his daughter at Bhopal, he came
there. Thereafter, a compromise deed was executed by him from the
compulsion of the family members of the respondent. Till now the
respondent was residing at Bhopal. Ex.P/8 shows that the respondent was
not tortured by the appellant. The appellant came to the house of
respondent to take her for cohabitant. Therefore, he executed an agreement
Ex.P/8 at Bhopal.
15. Again we wants to mention here the condition of the agreement
Ex.P./8. The appellant was agree to work and reside with the respondent at
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Bhopal. If such condition will not be fulfilled by the appellant, the respondent
may proceed against him and his family members and in case of his untimely
death, his property will go to his wife and daughter.
16. This agreement was executed at Bhopal, which establish that
the appellant came to Bhopal to meet his wife and daughter. He also agree
to comply all the wishes of his wife. We do not find that the respondent was
subjected to harass by her husband. Therefore, the respondent is not
entitled to get decree of divorce against her husband/appellant. In our
considered opinion, the learned trial Court has wrongly allowed the petition
in favour of the respondent.
17. Learned counsel for the appellant has placed reliance on the
judgment passed in case of Amjum Hasan Siddiqui Vs. Smt. Salma B.,
AIR 1992 Allahabad 322 and contended that application by divorced
woman for sum of Mehar or dower can only be entertained by Magistrate
concerned, the Family Court has no jurisdiction to entertain such petition.
18. In the light of above principle, we also with agreement to accept
the contention of the respondent. The learned trial Court has wrongly
directed the appellant to pay the Mehar amount to the respondent. The
respondent is entitled to recover it from the competent Court. Accordingly,
the appeal is allowed. The impugned judgment is hereby set aside.
(S.K. Gangele) (Smt. Anjuli Palo)
Digitally signed by PANKAJ
Date: 2018.02.16 14:47:02