Mohd. Mohsin Ali, Hyd vs Shabana Begum, Hyd
2023 Latest Caselaw 351 Tel

      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