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2019 Supreme(All) 1471
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
SHASHI KANT GUPTA, PRADEEP KUMAR SRIVASTAVA, JJ.
Smt. Nazia Begum – Appellant
Versus.
Shoaib Ahmad – Respondent
First Appeal No. 142 of 2015
Decided on : 12-04-2019
For the Appellant : Ajay Kumar Singh, Ashish Kumar Singh Counsel
For the Respondent: G.S. Chauhan
Headnote:
Criminal Procedure Code, 1973 – Section 125 – Appeal against judgment passed by Principal Judge, Family Court, whereby suit of plaintiff-respondent – Seeking declaration in respect of divorce given by him to defendant-appellant decreed – Held, On contrary, appellant-defendant has examined herself and three other witnesses in support and have all stated on oath that no such divorce was given by respondent-defendant nor same was ever communicated to her – Oral divorce has not been pleaded in plaint and divorce deed not signed by him – Plaintiff expressed his ignorance about payment of amount of dower and iddat money – Both witnesses made a lot of improvements in their statements and have given evidence beyond the pleading – Guidelines laid down by this court plaintiff-respondent could not prove five conditions to effect valid divorce – It was not pleaded and proved whether talaq was given orally or in writing in presence of two witnesses – Plaintiff-respondent also failed to prove that talaq was duly communicated to appellant-defendant – Grounds for divorce in view of desertion by appellant-defendant of plaintiff for no good reason and on her FIR, plaintiff and his family members were arrested and they had to be in jail for sometimes – Mediation on direction of High Court may also be considered to satisfy condition of conciliation effort by to persons, one from family of husband and other from the family of wife. Needless to mention that averment in plaint that plaintiff gave divorce not have a legal effect of divorce – Court below not legally sustainable and impugned judgment and decree is set aside – Appeal allowed. (Paras: 25 to 28)
Facts of the case:
Appeal against judgment passed by Principal Judge, Family Court, whereby suit of plaintiff-respondent – Seeking declaration in respect of divorce given by him to defendant-appellant decreed.
Findings of the court:
On contrary, appellant-defendant has examined herself and three other witnesses in support and have all stated on oath that no such divorce was given by respondent-defendant nor same was ever communicated to her – Oral divorce has not been pleaded in plaint and divorce deed not signed by him – Plaintiff expressed his ignorance about payment of amount of dower and iddat money – Both witnesses made a lot of improvements in their statements and have given evidence beyond the pleading – Guidelines laid down by this court plaintiff-respondent could not prove five conditions to effect valid divorce – It was not pleaded and proved whether talaq was given orally or in writing in presence of two witnesses – Plaintiff-respondent also failed to prove that talaq was duly communicated to appellant-defendant – Grounds for divorce in view of desertion by appellant-defendant of plaintiff for no good reason and on her FIR, plaintiff and his family members were arrested and they had to be in jail for sometimes – Mediation on direction of High Court may also be considered to satisfy condition of conciliation effort by to persons, one from family of husband and other from the family of wife. Needless to mention that averment in plaint that plaintiff gave divorce not have a legal effect of divorce – Court below not legally sustainable and impugned judgment and decree is set aside.
Result: Appeal allowed
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JUDGMENT :
Hon'ble Pradeep Kumar Srivastava, J.
1. This appeal has been preferred against the judgment dated 19.02.2015, passed by Principal Judge, Family Court, Allahabad, in Matrimonial Petition No. 562 of 2011 (Shoaib Ahmad vs. Smt. Nazia Begum), whereby the suit of the plaintiff-respondent seeking declaration in respect of divorce given by him to the defendant-appellant on 25.4.2011 has been decreed.
2. Brief facts of the case are that the plaintiff-respondent has filed a declaratory suit stating that he was married with the defendant-appellant, Smt. Nazia Begum on 07.10.2001 according to Muslim Law in Allahabad. The marriage was consummated when she came to his house. The plaintiff-respondent tried his all efforts to keep his wife happy and satisfied but her behaviour with him and with his family members was very rude. She is highly educated, whereas the plaintiff-respondent is a little educated and, therefore, the defendant-appellant had inferiority complex, hence, she always misbehaved with him, in a very humiliating way causing mental harassment to him. For saving his matrimonial life, the plaintiff-respondent continued tolerating her behaviour with the hope that some change will come in her behavour. The plaintiff-respondent refused to agree with her improper conditions as his father was a very old person and his younger brother was a handicapped and, therefore, it was his responsibility to live with them and render services to them. Thereupon, the defendant-appellant became more furious and started threatening that she will involve him and his family members in some false case of dowry and domestic violence. The defendant-appellant was always insisting for partition of his father's property and for starting some good business leaving the small business of tailoring. The defendant-appellant is a modern and independent kind of woman and does not agree to live in parda (veil).
3. On 19.09.2010, the defendant-appellant left the matrimonial house with jeweleries and costly costumes and went to her parental house. The plaintiff-appellant informed about it on 20.11.2010 to S.S.P., Allahabad, Human Rights Commission and the D.I.G., Lucknow by registered post. The defendant-appellant by giving a false application in Mahila Thana lodged a false case against the plaintiff-respondent, his handicapped brother and his old father, his married sister and, brother-in-law and consequently the plaintiff-respondent was arrested and sent to jail for some period. He filed a writ petition No. 3890 of 2011 before the Hon'ble High Court, Allahabad, wherein vide order dated 28.02.2011, the Court directed both the parties to appear before the Mediation Centre for settlement. The defendant-appellant on 22.01.2011 refused settlement through mediation and pressurized for divorce. She also started abusing the plaintiff-respondent. On 25.04.2011, the plaintiff-respondent gave divorce to defendant-appellant and since then according to Muslim Personal Law, they are no longer husband and wife. The divorce was in writing but his community and society wanted that divorce should be final between them and, therefore, it became necessary to get a declaration of divorce from the Court and it is why this suit was filed.
4. The defendant-appellant filed written statement admitting her marriage and denying the remaining contents of the plaint. She has stated that she belongs to a good family and despite the fact that the plaintiff was regularly harassing her physically and mentally on account of demand of dowry, she tried to accommodate with plaintiff-respondent as she has a son of 20 months about whom there is no mention in the plaint. But the plaintiff-respondent deserted her with son by beating her. It is wrong to say that she has taken with her jewellery and costly costumes as in the drafted divorce deed it has been mentioned that whatever articles and goods were given in the dowry, he will return the same to her. The divorce has neither been communicated nor s
