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1995 Supreme(MP) 892
Tej Shanker
Shaheen Qureshi
vs
Shakil Ahmed
Decided on : 18 October, 1995
A decree for restitution of conjugal rights cannot be granted unless dower is paid, and the trial court must discuss the evidence and give specific findings on each issue raised.
Headnote:
RESTITUTION OF CONJUGAL RIGHTS - MOHAMMEDAN LAW - DOWER - AMENDMENT OF PLEADINGS - ORDER 6 RULE 17, CPC - ORDER 41 RULE 27, CPC - DIVORCE - CRUELTY - SANAD NIKAH - SHAHAR KAZI CERTIFICATE - NECESSITY OF PAYMENT OF DOWER BEFORE DECREE - SUFFICIENCY OF REASONS IN JUDGMENT - REMAND.
Fact of the Case:
Husband filed a suit for restitution of conjugal rights under Mohammedan Law, alleging that the parties were married on 21.7.1989 and the wife left his house soon after the marriage. The wife denied the allegations and claimed that she was subjected to cruelty by the husband and his family members, and that she was divorced according to Mohammedan Law.
Finding of the Court:
The trial court decreed the suit in favor of the husband, finding that the wife's allegations of cruelty and divorce were not established. The wife appealed, arguing that the trial court failed to discuss the evidence on record and give specific findings on the issue of cruelty, and that a decree for restitution of conjugal rights could not be passed without payment of dower.
Issues: 1. Whether the trial court erred in not discussing the evidence and giving specific findings on the issue of cruelty. 2. Whether a decree for restitution of conjugal rights can be passed without payment of dower. 3. Whether the wife should be allowed to amend her written statement to include a plea based on facts and law relating to the amount of dower and the validity of the Sanad Nikah. 4. Whether a certificate alleged to have been granted by the Shahar Kazi of Dholpur should be admitted into evidence under Order 41 Rule 27, CPC.
Ratio Decidendi: 1. The trial court erred in not discussing the evidence and giving specific findings on the issue of cruelty. It is the duty of the trial court to consider and discuss the evidence adduced by the parties and come to a finding on each issue raised. 2. A decree for restitution of conjugal rights cannot be granted unless dower is paid, as per Article 293 of the Principles of Mohammedan Law. 3. The wife should be allowed to amend her written statement to include a plea based on facts and law relating to the amount of dower and the validity of the Sanad Nikah, as it is necessary for the complete adjudication of the case and does not change the nature of the defense. 4. The certificate alleged to have been granted by the Shahar Kazi of Dholpur cannot be admitted into evidence under Order 41 Rule 27, CPC, as there is no sufficient reason within the four corners of the rule to do so.
Final Decision: The appeal was allowed to the extent that the judgment and decree of the trial court were set aside and the case was remanded for further proceedings. The trial court was directed to allow the wife to make consequential amendments to her written statement and to give an opportunity to both parties to adduce evidence only with respect to the facts arising out of the amendment made in this Court. The finding relating to the plea of divorce was confirmed. The parties were directed to appear before the trial court on a specified date.
Tej Shanker, J.
1. This appeal has arisen out of a suit for restitution of conjugal rights filed by the husband Shakil Ahmed with the allegation that the parties were married on 21.7.1989 at Jamna Marriage Bhawan, Dana Oli, Lashkar, Gwalior. The details of presentation have been narrated in Para 2 of the petition which are/ not relevant for the disposal of this appeal. After the marriage the respondent went to her husband's house and on 22.7.1989, she went back to her parents' house. Again on 23.7.1989 she was brought by the plaintiff-respondent and she remained there till 28.7.1989. She went again to her maayaka and returned on 4.8.1989. She lived there till 14.8.1989. When the plaintiff-respondent returned from his duty he found the house locked and came to know from the neighbours that the petitioner went alongwith a lady and a man and articles. When he made search she met him at her parent's house. She told him as her mother was ailing she will return after she was cured. She gave the key of the house. The plaintiff respondent thereafter made several efforts but the defendant never returned and finally he was asked to live as gharjawai to which he did not agree and she thereafter threatened to implicate him falsely. The fact of marriage has not been disputed by the respondent. The defendant however denied all the allegations and alleged that she was a literate lady having done her M.A. and was employed whereas the plaintiff-respondent had read only upto higher secondary and was employed as a constable. His financial condition was precarious. The real facts were suppressed. The plaintiff and his family members were cruel and soon after the Nikah they started harassing her. They demanded a sum of Rs. 20,000/- to which she showed her inability whereupon her Devar, mother-in-law, sister-in-law and others started abusing her and beating her. They also took away her ornaments. On 2.8.1989 the plaintiff went to Rannod where the defendant was working and started threatening her with death. He also caught her and took her to his house and threatened to cut her nose. The house owner as well as other teachers made him to understand and then she was saved. She, therefore, made allegations of cruelty and also alleged that according to Mohammedan Law the plaintiff also divorced her.
2. The learned Trial Court after taking necessary evidence, considered the material on record decreed the suit. Hence this appeal by the wife.
3. The learned Counsel for the appellant contended that the learned Trial Court has not given any specific finding after discussing the evidence on record with respect to the plea of cruelty. He also urged that cruelty is a valid defence to such a suit. In this regard he referred to the Principles of Mohammedan Law by Mulla, 19th edition page 242 Article 281. The next contention of the learned Counsel is that no decree for restitution of conjugal rights could be passed because the amount of Mehar was not paid nor any order was passed by the lower Court in this regard. The defendant however, in his written statement stated that the suit was filed in order to avoid payment of Mehar. At this stage the learned Counsel also referred to an application under Order 6 Rule 17, CPC moved in this Court for permission to amend the written statement by incorporating a plea which is based upon fact as well as law. The learned Counsel urged that there was a controversy before the learned lower Court with respect to the quantum of Mehar because according to the plaintiff-respondent it was Rs. 1,100/- whereas according to the appellant it was Rs. 11,000/-. The learned Counsel pointed out that a photocopy of Sanad Nikah was filed by the plaintiff which was not proved. No original was brought on record. An application has been moved in this Court for permission to file a document which purports to be a certificate of Shahar Kazi, Dholpur to the effect that there was no Kazi by the name given in Sanad Nikah of which photo copy was p
