SARDAR ANWAR Vs. MUNWWAR HUSSAIN

JUDGEMENT

(1.) This is a defendant's Second Appeal in a suit for restitution of conjugal rights. The parties were married on 29th Jan., 1961. They had three children. According to the plaintiff's case, the defendant left for her parent's house some eight months before the suit, which was instituted on the 13th July, 1972. The plaintiff went to call her, but the defendant avoided to return and finally refused to do so. According to the plaintiff, the cause of the estrangement between the parties was that he had three children from his first wife and the defendant did not want to bring them up or to live with them. The plaintiff also alleged that he made efforts to settle the matter through respectable persons, but to no result, hence the suit.

(2.) The defendant admitted the marriage, but her main plea in defence was that the plaintiff had divorced her on 30th Sept., 1969 in the presence of a number of named persons and turned the defendant out of his house and since the defendant wanted to move the City Magistrate for a maintenance order, the plaintiff filed the suit giving rise to this Second Appeal. She further pleaded that a Nazharnana was also executed in the presence of respectable people of the community and of the Mohalla on the 2nd Nov., 1971. The issue, on which the parties went to trial, was whether the marriage between them was dissolved by divorce as alleged by the defendant. The defendant appeared as D.W.2. Her statement was recorded on 1st Dec., 1972. She stated on oath that she was married with the plaintiff about thirteen years ago and the plaintiff had, a little more than three years ago, divorced her at his house. He said before all the people of the house and children etc., "divorce you. divorce you". He said so, many times before every body. The witness then said, he said so, ten or twelve times and that at that time her father and maternal uncle were present, and that the plaintiff had also said to her "Khuda Rasool ki gaaam tujhe talaq di", and had said that three times. The witness added that the plaintiff took out his things and told her father to take her away and that some of her things had been taken out even before the pronouncement of the divorce. Her father then arranged for the carriage of the goods and she remained there for sometime until the goods were taken away. Then she left with her three children to her father's house and she had been at her father's place for a little more than three years. In cross-examination, she said that at that time two of the children were with the plaintiff and the one aged about three years five months was with her. Cross-examined about her statement relating to the divorce, she said that the divorce was given inside a room of the house. She was present, her husband was present, and the two maternal uncles were standing on the door, After other questions she was again asked about the divorce. She said that on the day, on which divorce was given, the quarrel started when he asked for the papers of the house as he said that he wanted to sell it and the quarrel continued for about half an hour and her maternal uncle and father had come after chat marpit, some ten mimtes after it. The two young boys had gone to call her father and maternal uncle. She had asked then to call her brother. The answer to the last question put to her in the cross-examination was that it was wrong to say that she was not divorced or that she was telling a lie.

(3.) The defendant's father Haji Ahmad Hussain, who gave his age as seventy two years and his occapation as a school teacher, appeared as D.W.3. He supported and corroborated the defendant's case that she had been divorced by the plaintiff a little over three years ago and that since the divorce, the defendant, his daughter has been living with him and the plaintiff's allegation that she was living with him for the last one year and a quarter only was wrong. Cross-examined about the giving of divorce, he said that on receiving information that the two were quarrelling and the plaintiff had divorced the defendant, he along with Bashir Ahmed reached the spot when the plaintiff said that he would not keep her and that the witness should take her away and thereupon he brought her along with the three children and her goods. The plaintiff had said inside the house as well as outside the house that he had divorced the defendant and that the witness should take her away and when he came outside, some twenty five to thirty persons collected. In reply to another question in cross-examination, the witness is supposed to have stated that the first quarrel took place about two-and-a-half years before the date of his statement end that the last quarrel took place some three years ago. At about the and of his cross-examination, the witness stated that it was wrong to say that the defendant was not living with him for the last three to three-and-a-half years.