MARIUM Vs. MD SHAMSI ALAM

JUDGEMENT

(1.) THIS is a plaintiff's second appeal in a suit for declaration that the plaintiff had been divorced by the defendant and for a decree for recovery of Rs. 975.65p. as dower; Rs. 300/- as maintenance for the period of 'Iddat' Rs. 2,800/- on account of the price of ornaments alleged to have been detained by the defendant; and maintenance for the daughter amounting to Rs. 600/- up to date of the suit and Rs. 50/- per month for the future. In the alternative, it was also pleaded that if the court found that relationship of husband and wife still existed between the parties the marriage may be dissolved by a decree of divorce. The trial court decreed the suit for recovery of Rs. 975.65p. on account of dower but dismissed the rest of the claim. The lower appellate court maintained the decree of the trial court.

(2.) THE plaintiff's case was that she was married to the defendant on March 31, 1967 : that the dower agreed upon was Rs. 975.65p.; that she went to live with the defendant immediately after the marriage along with all her dowry and ornaments etc., and that a girl was born to her who was about one year old when the suit was filed on 17th of July, 1969; that certain differences arose between the parties on account of, firstly the fact that the plaintiff's upbringing had been in an atmosphere of 'Faith' (Islam) while the atmosphere of the defendant's house was modern and, secondly, the fact that the plaintiff was suffering from Kanthmala, the treatment of which had caused much trouble to the defendant; that being fed up he sent the plaintiff to her parental house in the beginning of June, 1969, but on 22nd June, 1969, without any advance intimation, he came to the plaintiff's parental house and demanded that she be immediately sent back with him, to which her parents objected and said that it was impossible and improper to allow her to go at that time as she could be treated better for the illness at their place, whereupon the defendant in a rage and in one breath uttered the words of talaq thrice over, which left the plaintiff's parental side completely aghast, but the defendant immediately went back; that the plaintiff was spending the period of her iddat which was due to end on 12th of Oct. 1969. Apart from making the claims referred to above, certain more facts were mentioned in the plaint. It was stated that having gone away as aforesaid after divorcing the plaintiff on 22nd June, 1969, the defendant returned to the plaintiff's parental home during her father's absence with 4 motor cars and many helpers in order to forcibly take her away, but the mohalla people did not permit him to do so and he went back threatening that he would arrange to take the plaintiff away by force and then rest only after killing her by sprinkling acid on her body; that on reaching back home the defendant sent a letter on 30th June, 1969, to the plaintiff's father who was employed at Kanpur pleading with him to send the plaintiff, claiming that although he had given talaq but the same was revocable inasmuch as he had uttered it only once and declaring that it was not an irrevocable 'Talaq'. THE plaintiff's father did not consider it necessary to give any reply to the letter. THE plaint goes on to allege that two days thereafter, the defendant sent on 2nd July, 1969, a letter to the plaintiff and therein also he stated that the 'Talaq' was uttered only once and was revocable and requested the plaintiff to go back to him. No reply was given thereto also. Instead, on 8th July, 1969, the plaintiff through her father caused a notice to be sent to the defendant, claiming that the 'Talaq' given by the defendant to the plaintiff was irrevocable. This notice was duly served on the defendant. THE plaint alleges that the defendant thereafter sent a reply dated 11th July, 1969, to the plaintiff's father making wrong allegations and threatening criminal action against him.

(3.) BEFORE the lower appellate Court, the question raised for determination was whether there has been an irrevocable divorce between the parties, and on this question it held that the divorce was revocable and the defendant having expressed his intention to take the plaintiff back and having also instituted the suit for restitution of conjugal rights, he had actually revoked the divorce, and the marriage between the parties could not be said to have been dissolved. The alternative plea, even if the divorce was held to have been revoked the plaintiff is entitled to get the marriage dissolved under the provision of the Dissolution of Muslim Marriages Act, 1939, was also negatived. The claim for maintenance for the child was negatived on the ground that she was dead, and that for the plaintiff herself on the ground that she was living with her parents, of her own free will, and had neither been divorced nor described nor-ill- treated by the defendant. The claim for return of articles of dowry and ornaments, etc., was also negatived.