1963 Supreme(AP) 233

Andhra Pradesh High Court
Judges : GOPALA KRISHNAN NAIR
MARIAMUNNISA BEGUM - Appellant
Versus
NOOR Mohd. SABEB ALIAS A.K.M.NOOR - Respondent
Decided On : 11-28-63

MUSLIM LAW - DIVORCE - MAINTENANCE - WIFE ENTITLED TO MAINTENANCE FOR THREE MONTHS FROM THE DATE OF PRONOUNCEMENT OF TALAK - RATE OF MAINTENANCE TO BE DETERMINED BY THE COURT CONSIDERING THE FINANCIAL POSITION OF THE HUSBAND AND THE SOCIAL STATUS OF THE WIFE - HIBA JEWELS - WIFE ENTITLED TO RETURN OF HIBA JEWELS OR THEIR VALUE - JURISDICTION - COURT AT THE PLACE OF RESIDENCE OF THE WIFE HAS JURISDICTION TO TRY THE SUIT FOR RETURN OF HIBA JEWELS.

Headnote:

MUSLIM LAW - DIVORCE - MAINTENANCE - WIFE ENTITLED TO MAINTENANCE FOR THREE MONTHS FROM THE DATE OF PRONOUNCEMENT OF TALAK - RATE OF MAINTENANCE TO BE DETERMINED BY THE COURT CONSIDERING THE FINANCIAL POSITION OF THE HUSBAND AND THE SOCIAL STATUS OF THE WIFE - HIBA JEWELS - WIFE ENTITLED TO RETURN OF HIBA JEWELS OR THEIR VALUE - JURISDICTION - COURT AT THE PLACE OF RESIDENCE OF THE WIFE HAS JURISDICTION TO TRY THE SUIT FOR RETURN OF HIBA JEWELS.

Fact of the Case:

The appellant was the plaintiff in both the suits. The first suit was for recovery of the value of 39 tolas of gold which was alleged to be the mahar due to the plaintiff from her husband, who divorced her on 7th June, 1955, and also for recovery of jewels worth Rs. 5,000 and a wrist watch worth Rs, 600. The parties are Muslims the plaintiff, Who was about 18 years old, was married to the defendant-respondent on 4th May, 1955 at Bapatla whets her sister resided with her husband (P. W. 3 ). The day after the marriage, the defendant-respondent took the plaintiff to Pondicherry. On his way, he stopped at Hyderabad for about three days. After reaching Pondicherry, the husband and wife lived there for about two weeks. On 27th May, 1955, the plaintiff s sister and her husband (P. W. 3) went to Pondicherry with the object of taking the plaintiff back to Bapatla for making the customary visits after the marriage. The evidence in the case shows that the unannounced arrival of P. W. 3 and his wife (plaintiff s sister) at Pondicherry annoyed the defendant-respondent. It is not necessary to refer to the background of mistrust or suspicion which the defeadint-respondent, according to his evidence, had already entertained against the plaintiff. The result of it all was that, P. W. 3 and his wife did not receive a warm reception from the defendant-respondent, It also appears from the evidence that the defendant was not happy about the plaintiff being taken back to Bapitia. However, the plaintiff aocompanied her sister and p. W. 3 to Bapatla. After reaching Bapatla, P. W. 3 wrote to the defendant but the reaction of the defendant does not appear to have been pleasant. On 2nd June, 1955, the defendant tent a telegram Exhibit B-3 to P. W. 3 asking him not ta send the plaintiff to him This was followed by Exhibit A-37 dated 7th June, 1955, conveying to P. W. 3 that be had divorced the plaintiff by pronouncing talak . Exhibit A-37 was received by P. W. 3 on 9th June, 1955 ,and the plaintiff was duly informed of its contents the same day. Thereafter, on 4th July, 1955, the plaintiff caused a lawyer s notice (Exhibit B-7) to be issued to the defendant demanding the mahar of 39 tolas of gold aad also the return of the jewels of the plaintiff which the defendant had removed at pondicberry and kept with him before the departure of the plaintiff from Pondicherry to Bapatla The defendant did not accede to these demands. Eventually , O. S. No. 52 of 1955 was laid by the plaintiff on 21st July, 1955. The defendant resisted the suit by setting up that the marriage itself was not va id became it was brought about by misrepresentation, fraud and coercion and also because the consent of contracting parties viz-, the plaintiff and the defendant, was not given before the requisite number of witnesses as required by law. He further pleaded that he had agreed to pay only a mthar of 3 tolas of gold and not 39 tolas as claimed in the plaint. The other ptsa ot his was that the jewels, which were presented by him, were kept back at bapatla by the plaintiff when she proceeded with him to Pondichcrry, a nd that therefore there was no quesiton of the defendant removing the jewels and keeping them at Ponicherry. On this ground, he disowned liability for the claim regarding the jewels. He totally denied the claim regarding the wrist watch. O. S. No. 45 of 1955 related to the plaintiff s claim for maintenance from the defendant for a period of one year from 2nd June, 1955, at the rate of rs. 400 a month. In this suit also, the defendant railed the plea that the marriage was not vaild and that the palintiff was therefore not entitled to any maintenance. He further pleaded that the rate of maintenance claimed was excessive and that the rate could be only Rs. 50 per month,and all pointed out that the plaintiff was not entitled to cliam any arrear of maintenance, and that therefore maintenance for the period of one year could not be granted to her in any event.

Finding of the Court:

The plaintiff is entitled to a decree for maintenance for a period of three months commencing from 7th June 1955 the rate of maintenance claimed in the plaint and pressed at the trial was rs. 400 a month. In the written statement, the defendant alleged that the proper rate of maintenance would be Rs. 50 a month. The trial Court adopted the defendant s version. I do not tnink this was justified. The Subordinate judge himself stated that the defendant bslonged to upper middle class and that the plaintiff can be said to belong to average middle class. 1 do not think a sum of Rs. 50 is proper maintenance for the wife of a gentleman of upper middle class or to a lady belonging to the ordinaty middle class. The learned Counsel for the plaintiff-appellant has pressed upon me Exhibit A-15 which is a pre-marital letter written by the defendant -,to P. W. 3. This letter appears to me an exercise in self-advertisement by the defendant. He pictures himself as almost business magnate with accounts in many famous overseas bankt with flourishing export and import trade with many foreign countries. But this letter itself says that he has invested only a sum of Rs. 30,000- The possibilities of such a small investment do not seem to well accord with the tall claims made by the defendant in Exhibit A-15. I do not think it will be fair to the defendant to catch him at his own vanity and make him liable to pay more than he reasonbly can. The plaintiff has not, been able to substantiate the plaint allegation thit the defendant s monthly income is rs. 2,000 and that he owns buildings and lands and a bank balance of Rs. 4 lakhs. All these seem to ba exaggeration on the part of the plaintiff in order to swell the rate of maintenance. Considering all the aspects of the matter, i think a sum of Rs. 100 a month will be a fair and reasonable rate of main, tenance to be awarded in the present case.

Issues: None

Ratio Decidendi: 1. A Muslim wife who is divorced is entitled to get maintenance from her erstwhile husband during the period of Iddat. 2. The wife in the circumstances of a case like the present is entitled to maintenance for three monihg from th date of the pronouncement of the talaq. 3. The rate of maintenance to be awarded to a Muslim wife who is divorced is to be determined by the court considering the financial position of the husband and the social status of the wife. 4. A Muslim wife is entitled to return of hiba jewels or their value from her husband after divorce. 5. The court at the place of residence of the wife has jurisdiction to try the suit for return of hiba jewels.

Final Decision: Appeals allowed decrtis medfied.