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2011 Supreme(UK) 342
2011(2) UC 1401
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Hon’ble Prafulla C. Pant, J., Sudhanshu Dhulia, J.
Smt. Nafeesa – Appellant
Versus
Shamim Ahmad – Respondent
First Appeal No. 25 of 2010
Decided on : 30.06.2011
Shri Mohd. Safdar, Advocate, present for the appellant Shri Kuldeep Singh Rawal, Advocate, present for the respondent
The main legal point established is that under the Dissolution of Muslim Marriage Act, a woman can seek a decree of dissolution of her marriage on grounds of cruelty and neglect by the husband.
Headnote:
Dissolution of Muslim Marriage Act - Divorce - Section 2 of Dissolution of Muslim Marriage Act, 1939 - [Grounds for decree for dissolution of marriage: - A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely: (i) that the whereabouts of the husband have not been known for a period of four years; (ii) that the husband has neglected or has failed to provide for her maintenance for a period of two years; (viii) that the husband treats her with cruelty, that is to say,-- (a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment; or (b) associates with women of evil repute or leads an infamous life; or (c) attempts to force her to lead an immoral life; or (d) disposes of her property or prevents her exercising her legal rights over it; or (e) obstructs her in the observance of her religious profession or practice; or (f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quoran]
Fact of the Case:
The appellant sought a decree of divorce under section 2 of Dissolution of Muslim Marriage Act, 1939, alleging cruelty and neglect by the respondent. The trial court dismissed the suit, but the appellant appealed.
Finding of the Court:
The court found that the husband had treated the wife with cruelty and neglected to maintain her, leading to the dissolution of the marriage.
Issues: The issues included allegations of cruelty, neglect, and demand of dowry, along with the validity of the suit for divorce.
Ratio Decidendi: The court relied on the evidence presented, including the statements of the parties and witnesses, to determine the husband's conduct towards the wife and his failure to provide maintenance.
Final Decision: The appeal was allowed, the trial court's judgment was set aside, and the petition for dissolution of marriage was granted, leading to the dissolution of the marriage.
This appeal, preferred under section 19 of Family Courts Act, 1984, is directed against the Judgment and order dated 06.02.2010, passed by Additional Judge Family Court, Roorkee, in Suit No. 58 of 2004, whereby said court has dismissed the suit filed by the wife (appellant) for a decree of divorce.
2. Heard learned counsel for the parties, and perused the lower court record.
3. Brief facts of the case, are that, the appellant Nafeesa got married to respondent Shamim Ahmad in the year 1998, following the muslim rites in village Bijholi. It is pleaded on behalf of the appellant before the trial court that after her marriage she discharged her matrimonial obligations and two children were born out of the wedlock. It is alleged by the wife in her petition for divorce moved under section 2 of Dissolution of Muslim Marriage Act, 1939, that after two years of marriage respondent (husband) started treating the appellant with cruelty. It is also pleaded by her that respondent is a thief, who runs business of selling meat/ beaf of the stolen animals. It is also alleged that the appellant was subjected to mental and physical cruelty, and she was forced to leave her husband's house in July 2003. It is also mentioned in the petition that the respondent used to harassment the appellant for non fulfilment of demand of dowry. It is also mentioned that appellant filed a criminal case in connection with the demand of dowry and harassment. With these allegations the appellant sought decree of divorce in the trial court.
4. Respondent Shamim Ahmad contested the suit before the trial court and filed the written statement. However, he admitted that he got married to appellant and two female children were born out of the wedlock. As to the rest of the allegations he denied the same. He has pleaded in the written statement that the appellant had implicated the respondent in false criminal cases including one, which relates to maintenance claimed under section 125 of Cr.P.C. It is alleged by the husband that his wife left him, on a false pretext that her sister in law (BHABHI) was unwell. Lastly, it is pleaded that the respondent is ready to keep his wife and children with him. On the basis of pleaded of the parties, the trial court framed following issues :-
(i) Whether, the petitioner got married to respondent in village Bijholi about five years before filing of the petition and Mehar was fixed at ` 525/-.
(ii) Whether two female children were born out of the wedlock who are living with the petitioner, if so its effect?
(iii) Whether the respondent is a man of bad character and beats his wife, if so its effect?
(iv) Whether the respondent made any demand of dowry and harassed his After recording the evidence, of the parties, and after hearing them, the trial court decided issue no.1,2 and 3 in favour of the petitioner. However, the rest of the issues were decided against her, and suit was dismissed. Hence this appeal.
wife for non fulfillment there of.
(v) Whether the respondent has neglected to maintain his wife for last two years,
if so its effect?
(vi) Whether suit filed by the petitioner is without any cause of action, if so its
effect?
(vii) Whether the respondent has filed a suit for restitution of conjugal rights and
the present petition is filed by the petitioner to save herself ?
5. Learned counsel for the appellant argued before this court that the trial court has erred in law in dismissing the suit for divorce even though the grounds taken in the petition were proved on the record. On the other hand, learned counsel for the respondent submitted that the allegations made by the appellant were false and the petition was rightly dismissed by the trial court.
6. Before further discussions, we think it just and proper to mention the relevant provision of law applicable to the present case. A Muslim woman, under Muslim Law can seek a decree of dissolution of her marriage on one or more of the grounds ment
