Chattisgarh High Court
Abdul Hanif vs Smt. Tarannum Bano on 19 July, 2022
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
First Appeal No. 183 of 2008
Judgment Reserved on 04/05/2022
Judgment Delivered on 19/07/2022
Abdul Hanif @ Bablu S/o. Abdul Hafiz, aged about 27 years, R/o. Village
Takiyapara, Ashrafnagar, Durg, Tahsil and Distirct Durg (CG)
----------Appellant/Defendant
VERSUS
Smt. Tarannum Bano, D/o. Sheikh Galib Kuraishi, Aged about 22 years, R/o.
Village Jaisakarra, Tahsil Charaman, District Kanker (CG)
--------- Respondent/plaintiff
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For the Appellant : Mr. Manoj Paranjpe with
Mr. Shubhank Tiwari, Advocates
For the Respondent : Mr. D.N. Prajapati with
Ms. Vedangi Jangade, Advocates
----------------------------------------------------------------------------------------------------
Hon'ble Shri Justice Narendra Kumar Vyas
CAV Judgement
1. This is first appeal under Section 96 CPC against the judgment and decree
dated 10.01.2008 passed by learned the District Judge, North Bastar, Kankar
(CG) in Civil Suit No. 2-A/2007, by which the Civil Suit filed by the plaintiff
under Section 15(8) of the Dissolution of Muslim Marriage Act, 1939 has
been allowed and the marriage solemnized between the appellant and the
respondent has been declared as null and void. Learned trial Court by
impugned judgment and decree has directed the appellant to return the gifts
which have been received by the relatives of the respondents at the time of
marriage within two months.
2. For the sake of convenience, the parties shall be referred to in terms of their
status as shown in Civil Suit No. 2-A/2007.
3. Brief facts as mentioned in the plaint are that the marriage between the
plaintiff and the defendant was solemnized on 19.05.2004 in village,
Jaisakarra, Tehsil Charama, District Kanker (CG). After the marriage, the
plaintiff was residing with her matrimonial house at Durg. It is contended that
there was demand of dowry by the husband and from his family members. It
is further contended that the appellant demanded Rs. 50,000/- for purchasing
washing machine, CD player and for constructing the house. It is further
contended that respondent was victimaized by the family members of
appellant which has caused apprehension in her mind with regard to her life
and safety as during pregnancy she was compelled to leave the matrimonial
house. It is further contended that on 18.09.2004 an agreement was
executed by the appellant before the witnesses that he will not harass his
wife and the family member of the appellant has also assured that they will
also not harass her and in view of their assurance the respondent come back
to her matrimonial house at Durg. But again the appellant has started beating
her, therefore, the respondent left the matrimonial house. It is further
contended that the appellant has failed to perform his duty without
reasonable cause and has failed to provide her maintenance which has
compelled the respondent to file decree of divorce.
4. The appellant has filed the written statement, denying the allegation made in
the application contending that there was illicit relationship between
respondent and other person. It has also been contended that there was no
matrimonial relation between the appellant and the respondent, still a child
was born on 21.02.2005, therefore, a doubt was created over the character
of respondent in such a situation it is not possible for the respondent to live
with the appellant and threatened him to commit suicide as such he informed
to Mahila Thana Durg on 30.06.2006. on 24.07.2006, the appellant has also
moved an application before Mediation Centre, Durg for bring his wife back
to matrimonial house, therefore, the respondent is not entitled to get any
relief and would pray for dismissal of the application.
5. On the pleadings of the parties, trial Court has framed as many as five
issued. The plaintiff to substantiate her case has examined Nandlal Sahare
(PW-1), Shatruram (PW-2), Tarunnum Bano (PW-3), Shekh Galib Kuraishi
(PW-4) and Kunwarpal Singh (PW-5) and exhibited document Nikahnama
(Ex.P-1), Agreement (Ex.P-2), List of gifts (Ex.P-3), Registered Notice (Ex.P-
4), Postcard (Ex.P-5), receipt (Ex.P-6), Prescription slip (Ex.P-7),
Prescription slip (Ex.P-8). The defendant to substantiate his case has
examined Abdil Hanif (DW-1), Jahira Bee (DW-2), Parveen Shekh (DW-3)
and exhibited documents complaint (Ex.D-1), Mediation report (Ex.D-2).
6. The plaintiff witnesses have reiterated averment made in the plaint, and they
have specifically pleaded about the return of Streedhan which was given by
the relatives of the plaintiff at the time of marriage exhibited as Ex.P-3 list of
the gifts. Learned trial Court after appreciating the evidence, material on
record has allowed the application filed by the plaintiff and granted decree of
divorce as well as directed the defendant to return of gifts along with costs of
the proceedings within two months vide judgment and decree dated
10.02.2008.
7. Being aggrieved by the judgment and decree passed by the trial court on
10.02.2008, the defendant has filed First Appeal under Section 96 CPC
before this Court. From the records of the Court it is apparent that the
appellant does not press the relief with regard to setting a side dissolution of
marriage but only wants to press the appeal with regard to return of
Streedhan as such this Court on 29.07.2009, has dismissed the appeal so far
as the dissolution of the marriage is concerned and the appeal was admitted
only on the question of Streedhan and the parties are directed to maintain
status quo as it obtains today till the next date of hearing.
8. Learned counsel for the appellant would submit that there is no provision
under the Muslim Law for return of gift/ streedhan given by the family
member of plaintiff/wife after dissolution of marriage. He would further submit
that there is no such prayer made by the plaintiff to return the said gift given
by the relative of the plaintiff, therefore, in absence of any pleading learned
trial Court has committed illegality in granting the relief which was not sought
by the plaintiff, therefore, the judgment and decree passed by the learned
trial Court is based on perverse finding and contrary to the law and deserves
to be set aside by this Court.
9. On the other hand, learned counsel for the respondent would submit that the
finding recorded by the trial Court is just and proper which does not call for
interference and would pray that the appeal may kindly be dismissed. She
would further submit that the issue raised in this appeal has been considered
by the Hon'ble High Court of Kerla in case of Abdul Sattar vs. Arifa Bibi
reported in 1 (1991) DMC 275.
10. I have heard learned counsel for the parties and record of the Court below
with utmost satisfaction.
11. From the records it is quite vivid that the respondent has claimed divorce by
filing the application under Dissolution of Muslim Marriage Act 1939, Section
5 of the Act provides protection to the divorced women. Section reads as
under;-
Rights to dower not to be affected.
Nothing contained in this Act shall affect any right which a
married women may have under Muslim Law to her dower
or any part thereof on the dissolution of her marriage.
12. Thereafter the Muslim women (Protection of Right on Divorce) Act, 1986
1986 was enacted by the legislature with an aim and object to provide right of
Muslim who has been divorced by, or have obtained divorced from their
husband and to provide for matter connected therewith or incidental thereto.
Section 3 of the Act provides that Mahr or other properties of Muslim woman
to be given to her at the time of divorce. Sub section 2 specifically provides
that where a reasonable and fair provision and maintenance or the amount of
mahr or dower due has not been made or paid or the properties referred to in
clause (d) of sub-section (1) have not been delivered to a divorced woman
on her divorce, she or any one duly authorised by her may, on her behalf,
make an application to a Magistrate for an order for payment of such
provision and maintenance, mahr or dower or the delivery of properties, as
the case may be.
13. For better understanding the lis between the parties it is expedient for this
Court to refer to section 3 of The Muslim Women (Protection of Rights on
Divorce) Act, 1986 which is extract below
Mahr or other properties of Muslim woman to be given to her at the
time of divorce.--
(1) Notwithstanding anything contained in any other law for the
time being in force, a divorced woman shall be entitled to
(a) a reasonable and fair provision and maintenance to be
made and paid to her within the iddat period by her former
husband;
(b) where she herself maintains the children born to her
before or after her divorce, a reasonable and fair provision
and maintenance to be made and paid by her former
husband for a period of two years from the respective dates
of birth of such children;
(c) an amount equal to the sum of mahr or dower agreed to
be paid to her at the time of her marriage or at any time
thereafter according to Muslim law; and
(d) all the properties given to her before or at the time of
marriage or after the marriage by her relatives or friends or
the husband or any relatives of the husband or his friends.
(2) Where a reasonable and fair provision and maintenance or the
amount of mahr or dower due has not been made or paid or the
properties referred to in clause (d) of sub-section (1) have not been
delivered to a divorced woman on her divorce, she or any one duly
authorised by her may, on her behalf, make an application to a
Magistrate for an order for payment of such provision and
maintenance, mahr or dower or the delivery of properties, as the
case may be.
(3) Where an application has been made under sub-section (2) by
a divorced woman, the Magistrate may, if he is satisfied that--
(a) her husband having sufficient means, has failed or
neglected to make or pay her within the iddat period a
reasonable and fair provision and maintenance for her
and the children; or
(b) the amount equal to the sum of mahr or dower has not
been paid or that the properties referred to in clause (d) of
sub-section (1) have not been delivered to her. make an
order, within one month of the date oftherefore, the finding
recorded by the trial Court is just and proper does not call
for interference and would pray for that the appeal may
kindly be dismissed. the filing of the application, directing
her former husband to pay such reasonable and fair
provision and maintenance to the divorced woman as he
may determine as fit and proper having regard to the
needs of the divorced woman, the standard of life enjoyed
by her during her marriage and the means of her former
husband or, as the case may be, for the payment of such
mahr or dower or the delivery of such properties referred
to in clause (d) of sub-section (1) to the divorced woman:
Provided that if the Magistrate finds it impracticable to
dispose of the application within the said period, he may,
for reasons to be recorded by him, dispose of the
application after the said period.
(4) If any person against whom an order has been made under
sub-section (3) fails without sufficient cause to comply with the
order, the Magistrate may issue a warrant for levying the amount
of maintenance or mahr or dower due in the manner provided for
levying fines under the Code of Criminal Procedure, 1973 (2 of
1974) and may sentence such person, for the whole or part of any
amount remaining unpaid after the execution of the warrant, to
imprisonment for a term which may extend to one year or until
payment if sooner made, subject to such person being heard in
defence and the said sentence being imposed according to the
provisions of the said Code.
14. Learned counsel for the respondent would submit that when respondent has
sought divorce by filing the application which was subsequently allowed by
the trial Court by its judgment and decree dated 10.01.2008, it is incumbent
upon the appellant to return the gift given to respondent at the time of
marriage. Therefore, even without any specific prayer the same should have
been given to the respondent as such the judgment and decree passed by
the trial court is legal, justified does not warrant any interference by this
Court.
15. The issue has come up for consideration before the Hon'ble Supreme Court
in the case of Danial Latifi and Another vs Union of India 2001 (7) SCC
740 wherein paragraph 27,28 and 29 wherein the Hon'ble Supreme Court
has examined Section 3(1) of the Act as under;-
27. Section 3(1) of the Act provides that a divorced woman
shall be entitled to have from her husband, a reasonable
and fair maintenance which is to be made and paid to her
within the iddat period. Under Sectiion 3(2) the Muslim
divorcee can file an application before a Magistrate if the
former husband has not paid to her a reasonable and fair
provision and maintenance or mahr due to her or has not
delivered the properties given to her before or at the time of
marriage by her relatives, or friends, or the husband or any
of his relatives or friends. Section 3(3) provides for
procedure wherein the Magistrate can pass an order
directing the former husband to pay such reasonable and
fair provision and maintenance to the divorced woman as he
may think fit and proper having regard to the needs of the
divorced woman, standard of life enjoyed by her during her
marriage and means of her former husband. The judicial
enforceability of the Muslim divorced womans right to
provision and maintenance under Section (3)(1)(a) of the Act
has been subjected to the condition of husband having
sufficient means which, strictly speaking, is contrary to the
principles of Muslim law as the liability to pay maintenance
during the iddat period is unconditional and cannot be
circumscribed by the financial means of the husband. The
purpose of the Act appears to be to allow the Muslim
husband to retain his freedom of avoiding payment of
maintenance to his erstwhile wife after divorce and the
period of iddat.
28. A careful reading of the provisions of the Act would
indicate that a divorced woman is entitled to a reasonable
and fair provision for maintenance. It was stated that
Parliament seems to intend that the divorced woman gets
sufficient means of livelihood, after the divorce and,
therefore, the word provision indicates that something is
provided in advance for meeting some needs. In other
words, at the time of divorce the Muslim husband is required
to contemplate the future needs and make preparatory
arrangements in advance for meeting those needs.
Reasonable and fair provision may include provision for her
residence, her food, her cloths, and other articles. The
expression within should be read as during or for and this
cannot be done because words cannot be construed
contrary to their meaning as the word within would mean on
or before, not beyond and, therefore, it was held that the Act
would mean that on or before the expiration of the iddat
period, the husband is bound to make and pay a
maintenance to the wife and if he fails to do so then the wife
is entitled to recover it by filing an application before the
Magistrate as provided in Sectopm 3(3) but no where the
Parliament has provided that reasonable and fair provision
and maintenance is limited only for the iddat period and not
beyond it. It would extend to the whole life of the divorced
wife unless she gets married for a second time.
29. The important section in the Act is Section 3 which
provides that divorced woman is entitled to obtain from her
former husband maintenance, provision and mahr, and to
recover from his possession her wedding presents and
dowry and authorizes the magistrate to order payment or
restoration of these sums or properties. The crux of the
matter is that the divorced woman shall be entitled to a
reasonable and fair provision and maintenance to be made
and paid to her within the iddat period by her former
husband. The wordings of Section 3 of the Act appear to
indicate that the husband has two separate and distinct
obligations : (1) to make a reasonable and fair provision for
his divorced wife; and (2) to provide maintenance for her.
The emphasis of this section is not on the nature or duration
of any such provision or maintenance, but on the time by
which an arrangement for payment of provision and
maintenance should be concluded, namely, within the iddat
period. If the provisions are so read, the Act would exclude
from liability for post-iddat period maintenance to a man who
has already discharged his obligations of both reasonable
and fair provision and maintenance by paying these
amounts in a lump sum to his wife, in addition to having paid
his wifes mahr and restored her dowry as per Section 3(1)
(c) and 3(1)(d) of the Act. Precisely, the point that arose for
consideration in Shah Banos case was that the husband has
not made a reasonable and fair provision for his divorced
wife even if he had paid the amount agreed as mahr half a
century earlier and provided iddat maintenance and he was,
therefore, ordered to pay a specified sum monthly to her
under Section 125 CrPC. This position was available to
Parliament on the date it enacted the law but even so, the
provisions enacted under the Act are a reasonable and fair
provision and maintenance to be made and paid as provided
under Section 3(1)(a) of the Act and these expressions
cover different things, firstly, by the use of two different verbs
to be made and paid to her within the iddat period, it is clear
that a fair and reasonable provision is to be made while
maintenance is to be paid; secondly, S183ection 4 of the
Act, which empowers the magistrate to issue an order for
payment of maintenance to the divorced woman against
various of her relatives, contains no reference to provision.
Obviously, the right to have a fair and reasonable provision
in her favour is a right enforceable only against the womans
former husband, and in addition to what he is obliged to pay
as maintenance; thirdly, the words of the Holy Quran, as
translated by Yusuf Ali of mata as maintenance though may
be incorrect and that other translations employed the word
provision, this Court in Shah Banos case dismissed this
aspect by holding that it is a distinction without a difference.
Indeed, whether mata was rendered maintenance or
provision, there could be no pretence that the husband in
Shah Banos case had provided anything at all by way of
mata to his divorced wife. The contention put forth on behalf
of the other side is that a divorced Muslim woman who is
entitled to mata is only a single or one time transaction
which does not mean payment of maintenance continuously
at all. This contention, apart from supporting the view that
the word provision in Section 3(1)(a) of the Act incorporates
mata as a right of the divorced Muslim woman distinct from
and in addition to mahr and maintenance for the iddat
period, also enables a reasonable and fair provision and a
reasonable and fair provision as provided under Section 3(3)
of the Act would be with reference to the needs of the
divorced woman, the means of the husband, and the
standard of life the woman enjoyed during the marriage and
there is no reason why such provision could not take the
form of the regular payment of alimony to the divorced
woman, though it may look ironical that the enactment
intended to reverse the decision in Shah Banos case,
actually codifies the very rationale contained therein.
16. From the above stated position of law, it is incumbent upon the appellant to
return the gift which has been received by the respondent at the time of her
marriage. Now, coming to the facts of the case that Ex.P-3 i.e. the list of the
gifts given to the plaintiff at the time of her marriage by the relatives which
has been proved by examining independent witnesses namely Nandlal
Sahare, who in his examination-in-chief has stated that gift under Ex.P-3 has
been given to the respondent at the time of marriage wherein he has put his
signature. The other witness Shatruam has also examined before the trial
Court who has also stated that the gift and other items have been given by
the uncle of respondent and in this regard there is no cross-examination on
the credibility of the witnesses examined by the respondent. Learned trial
Court while granting the decree has recorded the finding in paragraph-11 of
it's judgment and has considered the statement of Shekh Galib (PW-4)
wherein he has categorically stated that his relatives have given gift and
other items to her daughter's marriage and he handed over the same to her
daughter at the time of her marriage before the witnesses and enclosed the
list of those items which is mentioned as Ex.P-3. The appellant has not led
any evidence to rebut the fact about gift received by the respondent
therefore, learned trial Court has decreed the suit.
17. This Court could not lose sight of the fact, that at the time of admission of the
appeal learned counsel has already made statement before this Court that
he does not press the relief with regard to dissolution of marriage and he only
wants to press the appeal with regard to return of Streedhan. This Court after
appreciating the evidence, material on record reached to the conclusion that
the findings of the learned trial Court that gifts and other items as mentioned
in the list Ex.P-3 was given to the respondent by the family member at the
time of marriage and same was not returned to the respondent by the
appellant which is in violation of provisions contained in Section 3(2) of the
Act as well as against law laid down by Hon'ble Supreme Court in the case of
Danial Latifi (supra), considering the entire evidence on record, I am of the
view that there is no perversity or illegality or there is violation of law while
passing the judgment and decree in favour of the respondent, therefore, the
instant appeal deserves to be and is accordingly dismissed. No order as to
costs.
18. Interim order passed by this Court on 27.09.2009 stands vacated. It is
directed that the appellant shall return the gifts as enumerated in Ex.P-3 to
the respondent within a period of two months from the date of receipt of this
copy of the judgment and decree passed by this Court.
19. A decree be drawn up accordingly.
Sd/-
(Narendra Kumar Vyas)
Judge
Santosh
