SHAUKAT JEHAN Vs. ZAHID ALI

JUDGEMENT

(1.) THIS is a plaintiff's second appeal and arises in the following circumstances. The plaintiff-appellant Smt. Shaukat Jehan was married to the defendant respondent Zahid Ali in accordance with the Muslim Law applicable to the parties on 21-6-1969. She came to stay with her husband at Sitapur and on the very first day she came to know from the ladies that her husband was suffering from tuberculosis. The defendant was advised to have X-ray examination done. It was then confirmed that he was suffering from tuberculosis. The clothes and ornaments given in the dowry were also said to be in possession of the defendant-respondent. On 5-10-1971 she filed the suit giving rise to this appeal for dissolution of her marriage with the respondent on the ground that the respondent was on the date of the marriage as also on the date of the suit suffering from tuberculosis and this was injurious to her health and life and that the respondent had inspite of the demand failed to pay maintenance during the period of two years prior to the suit.

(2.) THE claim was resisted by the defendant-respondent on the ground that he did not suffer from tuberculosis and that the report if any obtained from the doctor was a manipulated one. He claimed to be a student of B.Sc. in the Aligarh Muslim University. According to him, the plaintiff's father wanted him to stay at his place as a Ghar Damad like his other sons-in-law. He denied that he had failed to maintain the plaintiff and contended that he had always been asking her to come to his house and also used to visit her place so much so that he had also filed a suit in the court of Munsif fur restitution of conjugal rights.

(3.) TAKING the second point first, it will appear that there is a positive finding of fact supported by cogent reasons and which has not been challenged that the plaintiff never agreed to come and reside at the house of the defendant even though the husband visited the plaintiff's place several times and asked her to come and stay with him. In all probability, she had been avoiding to go to the defendant's house for the reason that she suspected the defendant to be suffering from tuberculosis or at the insistence of her father she decided to stay at her father's place till some arrangement to secure her future was made in order to meet the contingency of the possible death of the defendant due to tuberculosis. There are letters on record and admissions of the plaintiff herself when she appeared in the witness-box, indicating that her father desired the defendant's father to execute some doucment so that the defendants gets his appropriate share in the property and also assure by another document that in the event of the death of the defendant property would pass to the plaintiff. Thus the insistence was on making adequate provision as a security for the plaintiff's future. There is nothing to indicate that the defendant was avoiding to bring her to his house or to maintain her there. It has not been established that the plaintiff ever made a demand for payment of maintenance or that the same was refused by the defendant. Obviously therefore, the defendant neither neglected nor failed to provide her maintenance. On the contrary, there is evidence to show that at times when he visited her, he also used to pay some money to her.