NASEEM BEGAM Vs. ALAM ALI KHAN

JUDGEMENT

(1.) THIS second appeal arises from a suit for recovery of prompt dower. The suit was decreed by trial Court but the decree has been reversed by the lower appellate Court on the finding that the plaintiff had relinquished the dower debt after the marriage. Learned counsel for the appellant has contended that the finding of the lower appellate Court that the plaintiff had relinquished the dower debt after the marriage is erroneous in law. For arriving at this finding, the lower appellate Court has relied on the contents of paragraph 5 of the plaint and has observed that in that paragraph she admitted that she demanded the dower on her first co -habitation after the marriage and further that her own statement about the time when she demanded the dower debt was vacillating. Paragraph 9 of the plaint read as under:

(2.) THE plain meaning of the plea is not that the dower was demanded by the plaintiff before co -habitation took place but that it had become due on co -habitation having been taken place and was repeatedly demanded thereafter but the defendant dishonestly refused to pay the same. I have looked into the statement of the plaintiff on this point. In her examination -in -chief she did not specify any point of time when dower was demanded. In cross -examination, she stated that she lived and co -habited with the defendant for about 5 or 6 years after marriage and that she did not demand the dower so long as she was living with the defendant and demanded it only after she had been turned out by the defendant from his house and that it was demanded some 2 or 4 months after her being turned out from the house. She denied the suggestion that she had ever excused the dower or that she was ever asked to excuse the dower. It is thus clear that the finding of the lower appellate Court that the plaintiff had relinquished her prompt dower is vitiated by a misreading of the plaint and the plaintiff's statement on oath. Further no countenance could be given to the defendant's claim that the plaintiff had relinquished her prompt dower, for, what the defendant said was, that the whole amount of the dower, that is, Rs. 4,000/ - had been relinquished by the plaintiff in the presence of Rahmatullah Khan and Badiullah Khan. There was no question about the relinquishment of the whole of the dower. The question was about the relinquishment of only prompt dower. The alleged witnesses of relinquishment were not produced by the defendant. The only witness produced by the defendant in addition to himself was Alim Ullah Khan (D.W.2), who stated on being cross -examined that half of the amount of the dower was prompt and the remaining half was deferred. With regard to the story of relinquishment, all that the witness said was that he heard at some shop that the plaintiff had excused the payment of the dower. He expressly said that the plaintiff had not excused the payment of the dower in his presence.

(3.) THE lower appellate Court has also held that the suit for recovery of prompt dower was barred by limitation as it should have been filed within three years of the demand, which according to the lower appellate Court was made just after the marriage and refused. Indian Limitation Act, 1908, prescribed, by Articles 103 and 104 a period of limitation of three years, in the case of prompt dower from the date when the dower is demanded and refused, or where no such demand has been made during the continuance of the marriage, when the marriage, is dissolved by death or divorce. The present suit was, however, filed after the repeal of the Indian Limitation Act, 1908 by the Limitation Act, 1963. The Limitation Act, 1963 does not contain any Article corresponding to the Articles 103 and 104 of the Indian Limitation Act, 1908; on the other hand Section 29(3) thereof expressly provides that save as otherwise provided in any law for the time being in force with respect to marriage and divorce, nothing in this Act shall apply to any suit for other proceeding under any such law.