ZAINABA Vs. T A ABDUL RASHEED

JUDGEMENT

(1.) Mat. Appeal 896 of 2011 is filed by the respondent/husband in O.P. No. 251 of 2010 on the file of the Family Court, Kasaragod. The respondent is the petitioner/wife in that Original Petition, which was filed by her Under Section 7(1)(a) of the Family Courts Act, 1984 and Section 2(ii), (viii)(a) and (d) arid (ix) of the Dissolution of Muslim Marriages Act, 1939 (for short, 'the Act'). Mat Appeal No. 245 of 2008 is filed by the respondent/wife in O.P. No. 85 of 2007 on the file of the Family Court, Kasaragod. The respondent is the petitioner/husband in that Original Petition, which was filed by him for restitution of conjugal rights. Since the parties in both the appeals are the same and the questions involved are interconnected, the above appeals are disposed of by this common judgment. The averments of the petitioner/wife in O.P. 251 of 2010 are briefly as follows: The marriage between the petitioner and the respondent was solemnized on 18.S.2003 as per the customs prevailing in the community. Nikah ceremony was performed on 18.5.2003 and the 'Veettukudal' function was conducted on 14.3.2004. No children are born in the wedlock. Prior to the marriage proposal, the respondent had contracted another marriage, which was divorced. No demand for dowry was made from the side of the respondent at the time of marriage proposal. The petitioner's father is a psychiatric patient. At the time of marriage, the petitioner had completed her First Year B.Com. degree course and was preparing for the Second Year. The petitioner accepted the marriage proposal on condition that she should be allowed to complete her higher studies. After the Nikah ceremony, the respondent and his family members insisted the petitioner to discontinue her studies. When the family members of the petitioner conveyed the information regarding discontinuance of her studies, the respondent insisted for payment of Rs. 5,00,000/- and 200 sovereigns of gold ornaments as dowry. He also demanded a car, but the petitioner's parents were not in a position to purchase a car. With the help of the relatives, the parents of the petitioner gave 183 sovereigns of gold ornaments. After a few days of the marriage, the respondent and his family members started to ill-treat the petitioner demanding dowry of Rs. 5,00,000/- and a car. Many of the gold ornaments were pledged by the respondent in his name. On 24.12.2004 the grandfather of the petitioner was hospitalized. Even though all the family members visited him in the hospital, the respondent did not take the petitioner to see her sinking grandfather. After two days, the grandfather died. The respondent threatened her while going to the hospital that if she disclosed to others the reason of her swelling on the face, she would be killed. On 27.11.2005 when the petitioner and the respondent were to attend the house-warming ceremony of one Mr. Navas and Arifa, the respondent pointed a revolver on the head of the petitioner. On 12.2.2007, the respondent took the petitioner to her house and left there. On 15:2.2007 at 2 p.m., the respondent came along with his family members and entered into the petitioner's room and asked for money. On 14.3.2007, the father of the respondent came to the house of the petitioner and asked them to forget all the past incidents. The Manjeshwar Police has registered Crime No. 137/2007 against the respondent and his family members. The police filed charge sheet against the respondent and it is now pending before the C.J.M. Court, Kasaragod for the offence under Section 498A I.P.C. The Original Petition filed by the respondent seeking restitution of conjugal rights (O.P. No. 85 of 2007) was decreed on 13.2.2008. The petitioner filed Mat. Appeal No. 245 of 2008 against the said judgment. The respondent treated the petitioner with cruelty, both mental and physical. The respondent neglected her and failed to provide maintenance to her for the last more than two years continuously. There is an irretrievable break down in the marital relationship. The respondent has misappropriated and disposed of her gold ornaments given to her at the time of marriage. On the above allegations, the petitioner prayed for a decree for dissolution of marriage.

(2.) The respondent/husband filed counter contending as follows: The petition is premature and not maintainable in law. The petitioner had filed Mat. Appeal No. 245 of 2008 against the decree for restitution of conjugal rights passed in favour of the respondent. The decree passed by the Court is still in force and only the implementation is suspended. Hence this petition for divorce is not maintainable. It is true that the 'Nikah ceremony was solemnized on 18.5.2003 and the 'Veettikoodal' ceremony was conducted on 14.3.2004. The 'Veettikoodal' ceremony was delayed because the father of the respondent could not come from Singapore prior to March, 2004. The petitioner in her complaint filed before the C.J.M. Court, Kasaragod stated that she was maintaining a diary writing the events of the days after the Nikah and she left the same in the house of the respondent. The Manjeshwar Police has seized the diary and produced before the C.J.M. Court, Kasaragod. The events written by her in the diary reveals the true picture. The petitioner had only 11/2 sovereigns of gold ornaments at the time of fixation of marriage. The respondent never pledged gold ornaments belonging to the petitioner. The averment that the respondent did not take the petitioner to visit her grandfather is false. The petitioner's grandfather died on 18.12.2004 at Unity Hospital, Mangalore. It is true that the house warming ceremony of Mr. Navas was on 27.11.2005 at Mogral. The averment that the respondent used to point the revolver to the petitioner and threatened her is false. The petitioner is only a stooge in the hands of Navas, who is the husband of elder sister of the petitioner. The petitioner is not entitled to relief under the provisions alleged in the petition. The petition is liable to be dismissed.

(3.) In O.P. No. 251/2010, the petitioner/wife was examined as PW1, the respondent/husband was examined as RW1 and Exts. B1 to B3 were marked. The Family Court, on considering the evidence on record, allowed divorce under Section 2(ii) and (ix) of the Act and the prayer for divorce under Section 2(viii)(a) and (d) was disallowed. Against the judgment and decree allowing divorce under Section 2(ii) and (ix) of the Act, the respondent/husband in that Original Petition filed Mat. Appeal No. 896 of 2011.