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2013 Supreme(MP) 118
HIGH COURT OF MADHYA PRADESH JABALPUR
(SINGLE BENCH)
A.K. Shrivastava, J.
Mumtazul Karim, S/o Abdul Kaleem, Agriculturist R/o Gram Mehgaon, P.O. Gangerda Tahsil and District Seoni(M.P.) - Appellant
Versus
Smt. Vikarun Nisha, W/o Mumtazul Karim, R/o Dalsagar Ward, Seoni (M.P.) - Respondent
First Appeal No.196/1996
Decided on : 28.02.2013
Shri Adil Usmani, for the appellant.
None for the respondent.
The court established that evidence of cruelty and failure to maintain the wife justified the dissolution of the marriage under the Dissolution of Muslim Marriages Act, 1939.
Headnote:
Cruelty - Dissolution of Muslim Marriages Act, 1939 - Section 2(viii) - (a), (f)
Fact of the Case:
The plaintiff, a Muslim woman, filed for divorce under the Dissolution of Muslim Marriages Act, 1939, alleging cruelty by her husband and his family members. The defendant denied the allegations and argued that the suit should be dismissed.
Finding of the Court:
The court found that the plaintiff's evidence of cruelty by the defendant and his family members was reliable and upheld the trial court's decree of divorce.
Issues: 1. Whether the defendant was cruel towards the plaintiff as per Section 2(viii)(a) of the Act of 1939? 2. Whether the defendant failed to treat the plaintiff equitably as per Section 2(viii)(f) of the Act of 1939?
Ratio Decidendi: The court held that the evidence proved the defendant's cruelty towards the plaintiff and his failure to treat her equitably, justifying the dissolution of the marriage under Section 2(viii) of the Act of 1939.
Final Decision: The appeal was dismissed, affirming the decree of divorce in favor of the plaintiff.
1. This first appeal under Section 96 C.P.C. has been filed by defendant against judgment and decree of divorce dated 08.03.1996, passed by learned District Judge, Seoni in C.S. No.11-A/1993.
2. In brief, the case of plaintiff-respondent is that her husband (defendant) is Sunni Musalman and similarly she too is Summi Musalman and are being governed by Hanfi law. In Muslim Community, the Dissolution of Muslim Marriages Act, 1939 (in short the Act of 1939) is applicable. The marriage between plaintiff and defendant took place on 23.05.1982 and both of them lived together few days earlier to 05.06.1987 but with effect from 05.06.1987, they are residing separately. It is also the case of the plaintiff that a daughter has been born out of their wed-lock and whose name is Shahnaz Bano. Further it has been pleaded that in the year 1990 defendant has solemnized a second marriage in village Chidi, Tahsil Lakhnadon on 16.07.1990. The plaintiff through her counsel sent a notice to the defendant to make payment of Mehar and the said notice was replied by defendant on 31.07.1990. All these facts are not disputed.
3. As per the case of plaintiff, after six months of her marriage, the mother and sister of the defendant started ill-treating her and were also causing marpeet in the presence of defendant. The defendant's brother-in-law (her husband's sister's husband) used to hurl abuses to her. In these facts and circumstances, plaintiff was put under fear that the child which is in her womb may be effected adversely. Eventually with the consent of defendant and his mother, the plaintiff went to stay at Seoni at her parent's house, where she gave birth to a female child who was later on named as Shahnaz Bano. After giving birth to the daughter, the plaintiff went back to her nuptial home alongwith the newly born female child but the behaviour of defendant was not changed. He was also not taking due care of her. It is the further case of the plaintiff that on 05.06.1987, the cousin brother of plaintiff was going to be married, as a result she came to Seoni at her parent's place to attend the marriage, in which her husband (defendant) also came but he did not take care of plaintiff as well as innocent daughter and he came back to his village Mehgaon alone. It is her further case that by following the custom and rights, the defendant had never gone to the house of her parents to carry out Vida ceremony but secretly he was going to arrange a second marriage and ultimately in the year 1990, he solemnized a second marriage by abandoning the plaintiff. According to plaint averments, defendant has kept his second wife with him but he has become totally negligent towards her. During the period, when she was residing with the defendant, she was being ill-treated in cruelsome manner but his attitude and behaviour towards his second wife is quite cordial and the plaintiff is not being treated in the same manner by the defendant as he is treating his second wife. The defendant did not arrange and mange to provide maintenance to the plaintiff till 1988 when the suit was filed and despite a notice was sent to him making demand of payment of Mehar, the same has not been paid to her. Hence, on these premised submissions, present suit for dissolution of the marriage under the Act of 1939 has been filed by the plaintiff.
4. Defendant-appellant except the facts which are admitted, denied the other plaint averments and specifically denied that his mother, sister or brother-in-law ever ill-treated the plaintiff. It is also pleaded that their behaviour is not cruelsome against her. According to the defendant, plaintiff is habitual to live in a city atmosphere and therefore she is not accustomed and to manage herself in the living style of village and because she does not want to live in the village, therefore she was insisting the defendant to live at Seoni which was not possible for him because he is having agricultural land in the village and therefore, h
