SYED ZIAUDDIN Vs. PARVEEZ SHABANA

JUDGEMENT

(1.) In these two Second Appeals the parties are ccmmon. S.A. No. 909 of 1978 is filed against the judgement and decree of the learned Additional Chief Judge-cum-Special Judge for S.P.E. cafes, City Civil Court, Hyderabad in A.S. No. 173 of 1977 dissolving the marriage between Parveez Shabana and Syed Ziauddin alias Nawab and setting aside the judgment and decree of the 3rd Assistant Judge. City Civil Court, Hyderabad, in O.S. No. 1405 of 1972. It can be noted that the appeallant Syed Ziauddin filed O. S No, 160 of 197 5 in the District Munsif's Court, Khammam for restitution of conjugal rights. The said suit was transferred by an order of the High Court for being tried along with O.S. No. 1405 of 1972 which was filed by Parveez Shahana, the respondent herein, seeking dissolution of the marriage on the ground that the marriage is vitiated by fraud and non-fulfillment of essential conditions forming the basis of the Conduct of the 'Nikha'. Therefore, both the suits Were tried together and disposed of by a common judgment. The learned 3rd Assistant Judge, City Civil Court, decreed the suit O.S. No. 160 of 1975 filed by the husband and dismissed the suit O.S. No. 1405 of 1972 filed by the wife Parveez Shahana for dissolution of the marriage. Against the said judgment, both the parties preferred appeals separately to the Additional Chief Judge, City Civil Court. The learned Additional Chief Judge heard both the appeals and disposed them of by a common judgement. Both the appeals were allowed. In the result, C.S. No. 1405 of 1972 filed for dissolution of the marriage was decreed and O.S. No. 160 of 1975 filed for restitution of conjugal rights was dismissed. The husband Syed Ziauddin filed the present two second appeals against the common judgment of the learned Additional Chief Judge, City Civil Court. At I be time of arguments, both the learned counsel submitted that the arguments are common in both the appeals and so S.A. No. 132 of 1979 might be directed to be posted along with S.A. No. 909 of 1978. Both the learned counsel argued at length. It was discovered that the other appeal (S.A. 132 of 1979) was not yet admitted. Hence it was directed to be posted for admission before the concerned judge. My learned brother Kuppuswami, J. admitted the same and directed it to be posted along with S.A. No. 909 of '78. In S.A. No. 909 of 1978 the following substantial questions of Law were framed :

(2.) To appreciate the points raised by the learned counsel, it is necessary to note a few facts. The respondent Parveez Sbabana is a graduate in science from the Raja Bahadur Venkat Rama Reddy College, Narayanguda, Hyderabad, having passed in January 1970. She was eager to obtain admission in any medical college to become a doctor. Her father is a Superintendent in Board of Revenue (Excise), Hyderabad and does not have means and resources to educate her in medicine outside the city of Hyderabad, bearing Boarding and Lodging expenses of the respondent. As the respondent bad not secured higher percentage of marks, it was not possible for her to secure admission in any medical college at Hyderabad. Therefore, her only hope was to secure admission in the Kakatiya Medical College, Warangal for which a huge amount of Rs. 8,000/and odd was required to be deposited as capitation fees. That apart, she has to spend at the rate of Rs. 200/-per month towards boarding and lodging, The father of the appellant is an old acquaintance of the father of the respondent and a close relative. The appellant's elder brother was married on 21-6-1970. On that occasion, according to the respondent, the appellant saw her and liked her. So, his father approached her father and proposed to him to meet all the expenses for the respondent's medical education in Kakatiya Medical College, Warangal and requested him to marry the respondent to the appellant. In the beginning the respondent and her father were not prepared to agree to the said proposal as the appellant was not properly educated and is not equal in status to the respondent. But on the persistent requests of the appellant's father, they agreed to the above proposal. But, according to the appellant herein, the father of the respondent approached bis father and offered to give the respondent in marriage to the appellant with an idea of getting her education. The respondent's case is that her father agreed to give her in marriage to the appellant on certain conditions viz., that the betrothal ceremony of the appellant and the respondent might be performed, that the appellant and bis father should deposit a sum of Rs. 8,070/-and also Rs. 110/-and capitation fees in the Warangal Medical College for securing admission of the respondent in the integrated course of M.B B S., and should also meet all expenses for her stay and study in the said college hostel at Warangal till the completion of her graduation in medicine, that after her admission in M. B. B.S., course, the Nikha ceremony would be performed, that after the Nikha, a bouse worth atleasi Rs. 25.000/- which may fetch an approximate rent of Rs. 200/-per month shall be purchased in the name of the respondent to secure her studies till the completion of the said course and that the Nuptials ceremony known as 'Vidayee' or Rukshati to be performed only after the completion of the medical course by the respondent. As against this contention the contention of the appellant is that there were no such conditions at all fpr the marriage and that he himself voluntarily deposited the capitation fees in the Warangal Medical College as he wanted that the respondent should study medicine. The betrothal ceremony between the respondent and the appellant took place on 4 9-1970. He deposited Rs. 8070/-and Rs. 110/- in the Warangal Medical College on or about 13-5-1971 and the Nikha was performed on 11-6-1971 at Hyderabad, According to the respondent no 'Vidai' or Ruksati' was performed as originally agreed, but according to the appellant 'Vidai' or Ruksati was also performed and,tbe respondent came and lived with him for a few days at Hyderabad and also for some months at Khammam. The respondent appeared for the entrance examination for the seat in Medical College at Warangal, but she was not successful. Her name was included in the waiting list as Serial No. 2 in the first year course'of M.B. B.S. As she could not secure the necessary marks, as stated above, her name was included in the waiting lists. The appellant withdrew the amount deposited by him oa 4-9 1971. While the matters stood thus, the respondent received a telegram from the Warangal Medical College, asking her to inform her willingness for her admission in the second year course by re-depositing the capitation fees. In reply to this telegram, the respondent sent a telegram to the Principal, Warangal Medical College, expressing her willingness to join the course. The respondent's mother went to Khammam on 18-4-1972 and personally requested the appellant herein and his father to deposit the capitation fees so as to enable the respondent to join the medical course. Subsequently, the respondent's father sent telegram also to the appellant and his father requesting them to pay the said capitation fees But they did not deposit the capitation fees. The respondent's contention is that the appellant and his father were not having the idea to educate her in medicine and that they played fraud on her to obtain her consent for the marriage and therefore the contract of marriage between her and the appellant is vitiated by fraud and that the marriage is void, On the other hand the contention of the appellant is that the marriage is valid. In so far as the first point is concerned, as stated above, it reads ; "Whether the filing of the complaint on the basis of the allegations made in the plaint could be treated as cruelty?". The second point reads as under:

(3.) The learned counsel for the appellant contended that at the appellate stage, the amendment ought not to have been allowed, Only the ground of fraud was pleaded in the trial court, but mental cruelty was not pleaded. By the amendment, the wife, the respondent, wanted to plead cruelty for the purpose of dissolution of the marriage. This is entirely a new ground which could not be permitted by the appellate court. This ground was available to her when the suit was pending as she knew about the criminal complaint filed by the appellant and his father, but she bad not chosen to amend the pleadings in the trial court. Hence, the appellate court ought not to have allowed her to amend her pleadings. 3, Mr. C.P. Sarathy, the learned counsel for the respondent, on the other hand, contended that it was open to the appellate court to allow to amend the pleadings even at the appellate stage under Or. 6 rule 17 C.P.C. He also contended that allowing the parties to amend their pleadings at the appellate stage cannot constitute a substantial question of law that can be raised in the second appeal. That apart, the suit was filed for dissolution of marriage. The amendment was sought to be introduced in the pleadings. This aspect was considered by the appellate court and the appellate court has given cogent reasons for allowing the amendment of the pleaoings by the wife. I.A.No 290 of 1978 was filed to amend the written statement. I.A.No. 292 of 1978 in A S.No. 193 of 1977 is a petition filed to amend the plaint in O.S.No. 1405 of 1972. The learned additional Chief Judge dealt with this point in paragraph 21 of his judgment and held;