THE HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA
AND
THE HON'BLE SMT. JUSTICE M.G. PRIYADARSINI
F.C.A. No.122 of 2011
JUDGMENT: (Per the Hon'ble Smt. Justice M.G. Priyadarsini)
Assailing the order dated 18.01.2011 in F.C.O.P. No.147 of
2008 passed by the Additional Judge, Family Court, Hyderabad,
the appellant preferred the present appeal.
2. Vide aforesaid order, the Court below allowed the F.C.O.P.
filed by the wife, respondent herein, under Section 26 r/w Order
7, Rule 1 C.P.C. read with Section 3(a) of the Muslim Women (Protection of Right on Divorce) Act, 1988 directing the husband, appellant herein, to deposit the dowry amount of Rs.25,000/-, additional dowry amount of Rs.20,000/-, ten tulas gold and Jahez articles apart from Rs.3,00,000/- towards reasonable and fair provision & maintenance and Rs.2,000/- towards legal expenses.
3. The facts that are necessary for disposal of the appeal, in nutshell, are that the marriage of respondent took place with the appellant on 20.4.2000 as per Muslim law. At the time of marriage, the parents of respondent gave Rs.25,000/- towards dowry, ten tulas gold ornaments, 20 tulas silver ornaments apart from other valuable jahez articles and Rs.2,00,000/- cash towards 2 Dr.CSL,J & MGP,J F.C.A. No. 122 of 2011 marriage expenses. The respondent joined the company of the appellant and the marriage was consummated. Few days thereafter, the appellant started harassing the respondent for additional dowry of Rs.25,000/- for purchase of motorbike and as the said demand was not meted out, the appellant and his family members used to harass and ill-treat the respondent. The mother of the respondent gave Rs.20,000/- to the appellant and requested him not to harass the respondent in future, but however, the appellant did not purchase the bike and continued the harassment with a further demand of Rs.25,000/- and sent the respondent to her parents' house. In this connection, a meeting was held on 7.10.2003 wherein the appellant refused to take back the respondent to his house. As there was physical assault, the respondent lodged a complaint which was numbered as C.C. No. 993 of 2000. On 12.12.2003, the appellant took the entire gold jewellery of the respondent and left the house. During the pendency of the case, the appellant pronounced divorce to the respondent without her knowledge and consent in the year 2007 and the appellant had deposited the Iddat maintenance amount in the Khajayath Office and the same was also accepted by the respondent. However, the appellant did not return the dowry, additional dowry amount, all the jahez articles, gold & silver ornaments and also failed to provide fair provision to her. According to the respondent, the appellant is having own house, 3 Dr.CSL,J & MGP,J F.C.A. No. 122 of 2011 getting rents and that he sold away the house site plots at L.B. Nagar and received huge amounts, but not returning the dowry and jahez articles. Contesting the claim before the Court below, the appellant filed his counter denying the contents of the O.P. except admitting the marriage with the appellant. According to him, the father of the respondent was rickshaw puller and no dowry amount was given to him, much less the additional dowry. It is his case that the respondent left his company by taking gold ornaments from his house without his knowledge and the O.P. is filed to extract money from him. He has admitted that divorce was pronounced in Urdu daily newspaper, that the Iddat maintenance amount was deposited and that the respondent having knowledge about the same did not respond till 2007.
4. Before the Court below, the respondent got examined herself as P.W.1 apart from her mother as P.W.2 and got marked Exs.P.1 to P.6. The respondent got examined himself as R.W.1 apart from examining R.Ws.2 & 3 and marking Ex.R.1. The Court below considering the above said evidence, allowed the O.P. as indicated above. Aggrieved thereby, the husband is before this Court by way of present appeal.
5. The main contention of the learned counsel for the appellant is that although the appellant specifically pleaded that no jahez articles and gold & silver ornaments were given to him in the 4 Dr.CSL,J & MGP,J F.C.A. No. 122 of 2011 marriage, the Court below without there being any cogent evidence, has ordered for return of the same. So also, in the absence of any evidence in connection with the payment of dowry and additional dowry, the Court below erred in directing the appellant to deposit Rs.25,000/- and Rs.20,000/- towards dowry and additional dowry amount. In fact, the Court below failed to appreciate the fact that the respondent had voluntarily left the company of the appellant by taking away all the gold, cash and clothes from his house without intimating the appellant. Although the appellant, through the evidence of RWs.2 & 3, had established the fact that no jahez articles were given at the time of marriage, the Court below did not property appreciate the said evidence. Therefore, the learned counsel for the appellant seeks to set aside the impugned order by dismissing the F.C.O.P.
6. Heard the learned counsel for the appellant and the learned counsel for the respondent. Perused the material available on record.
7. The respondent-wife, in support of her pleadings, deposed as P.W.1 that her parents gave Rs.25,000/- towards dowry; ten tulas of gold ornaments, twenty tulas of silver ornaments and valuable jahez articles such as furniture, bed, sofa set etc. apart from spending an amount of Rs.2,00,000/- towards marriage expenses. She further deposed that when the appellant-husband harassed 5 Dr.CSL,J & MGP,J F.C.A. No. 122 of 2011 her for additional dowry, her mother gave an amount of Rs.20,000/- to the appellant by borrowing the said amount. Along with the evidence, she has filed a list of articles given towards jahez, however, admitted that the jahez articles are worth of Rs.1,00,000/-; gold & chadava worth Rs.10,200/-; silver jewellery ornaments worth Rs.4,000/- apart from marriage expenses of Rs.2,00,000/-. However, P.W.1 admitted that the said jahez list was not signed by the appellant. In the cross-examination, she had admitted that the jahez articles list has to be signed by both the parties as per their custom. P.W.2, the mother of respondent deposed in similar lines with that of the respondent regarding the payment of dowry, additional dowry, gold & silver articles, jahez articles and marriage expenses. Though P.Ws.1 & 2 were cross- examined at length, no contra evidence was elicited to discredit their evidence in this regard.
8. The appellant as R.W.1 denied the receipt of any dowry amount, additional dowry amount, jahez articles and the parents of respondent spending Rs.2,00,000/- towards marriage expenses. In the cross-examination, R.W.1 categorically admitted that Ex.P.1, list of jahez articles is in relation to his marriage. In the cross- examination, he had categorically admitted that he was having the capacity of giving 10 to 15 tulas of gold to the respondent-wife. He has even admitted that he is having capacity to give more gold than 6 Dr.CSL,J & MGP,J F.C.A. No. 122 of 2011 15 tulas to the second wife, in case of contracting second marriage. Although he had pleaded illness (epilepsy) and continuous treatment, he did not file any documentary evidence to that effect. He has deposed that as the father of respondent-wife was rickshaw puller, the question of parents of respondent spending Rs.2,00,000/- for the marriage expenses does not arise. The evidence of R.W.2, sister of the appellant, is to the effect that no dowry or jahez articles were given by the parents of respondent. R.W.3 deposed that the appellant is the brother of her father-in- law. According to her, the father of respondent is poor person and that no jahez articles were given at the time of marriage. However, in the cross-examination, she has admitted that though she stated in her chief-examination that she witnessed the marriage of appellant, in fact, she is not the witness to the marriage of the appellant.
9. As rightly observed by the Court below, the evidence of P.Ws. 1 & 2 is consistent and cogent regarding the payment of dowry amount of Rs.25,000/- and additional dowry amount of Rs.20,000/- apart from presentation of jahez articles as per Ex.P.1, which has also been admitted by the appellant in his cross- examination. As observed above, in the cross-examination, R.W.1 himself admitted that he is having capacity to give more than 15 tulas of gold in case of contracting second marriage. Considering 7 Dr.CSL,J & MGP,J F.C.A. No. 122 of 2011 the said evidence, we are of the view that the Court below is justified in directing the appellant to deposit the dowry amount of Rs.25,000/-, additional dowry amount of Rs.20,000/-, 10 tulas of gold, providing fair provision & maintenance and jahez articles as reflected in Ex.P.1. However, considering the fact that the appellant is suffering from ill-health (epilepsy), working as watchman and the respondent got remarried way back, this Court is inclined to reduce the quantum of amount awarded by the Court below from Rs.3,00,000/- to 2,00,000/- towards fair provisions and maintenance. Time for depositing the amounts and the articles is two months from the date of receipt of a copy of this order.
10. Accordingly, the appeal stands disposed of as indicated above. There shall be no order as to costs.
Miscellaneous Petitions, if any pending, shall stand closed.
_________________________________ DR. CHILLAKUR SUMALATHA, J ________________________ M.G. PRIYADARSINI, J 27-01-2023 tsr