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Syed Askari Hussain Rizvi vs Ksmt. Saba Jafri Rizvi on 16 February, 2018

HIGH COURT OF MADHYA PRADESH JABALPUR

F. A. No.687/2014

Syed Askari Hussain Rizvi

Vs.

Smt. Saba Jafri Rizvi

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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:-
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Significant Paragraphs:-
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JUDGMENT

(19.02.2018)
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
2 F. A. No.687/2014

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

between them.

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
3 F. A. No.687/2014

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

harassed her.

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
4 F. A. No.687/2014

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
5 F. A. No.687/2014

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
6 F. A. No.687/2014

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)
Judge Judge

pn

Digitally signed by PANKAJ
NAGLE
Date: 2018.02.16 14:47:02
+05’30’

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