MUMTAZUL KARIM Vs. VIKARUN NISHA

JUDGEMENT

(1.) This first appeal under Section 96 C.P.C. has been filed by defendant against judgment and decree of divorce dated 08.03.1996, passed by learned District Judge, Seoni in C.S. No. 11-A/1993. In brief, the case of plaintiff-respondent is that her husband (defendant) is Sunni Musalman and similarly she too is Sunni Musalman and are being governed by Hanfi law. In Muslim Community, the Dissolution of Muslim Marriage Act, 1939 (in short the Act of 1939) is applicable. The marriage between plaintiff and defendant took place on 23.05.1982 and both of them lived together few days earlier to 05.06.1987 but with effect from 05.06.1987, they are residing separately. It is also the case of the plaintiff that a daughter has been born out of their wed-lock and whose name is Shahnaz Ba no. Further it has been pleaded that in the year 1990 defendant has solemnized a second marriage in village Chidi, Tahsil Lakhnadon on 16.07.1990. The plaintiff through her counsel sent a notice to the defendant to make payment of Mehar and the said notice was replied by defendant on 31.07.1990. All these facts are not disputed.

(2.) As per the case of plaintiff, after six months of her marriage, the mother and sister of the defendant started ill-treating her and were also causing marpeet in the presence of defendant. The defendant's brother-in-law (her husband's sister's husband) used to hurl abuses to her. In these facts and circumstances, plaintiff was put under fear that the child which is in her womb may be effected adversely. Eventually with the consent of defendant and his mother, the plaintiff went to stay at Seoni at her parent's house, where she gave birth to a female child who was later on named as Shahnaz Ba no. After giving birth to the daughter, the plaintiff went back to her nuptial home along with the newly born female child but the behavior of defendant was not changed. He was also not taking due care of her. It is the further case of the plaintiff that on 05.06.1987, the cousin brother of plaintiff was going to be married, as a result she came to Seoni at her parent's place to attend the marriage, in which her husband (defendant) also came but he did not take care of plaintiff as well as innocent daughter and he came back to his village Mehgaon alone. It is her further case that by following the custom and rights, the defendant had never gone to the house of her parents to carry out Vida ceremony but secretly he was going to arrange a second marriage and ultimately in the year 1990, he solemnized a second marriage by abandoning the plaintiff. According to plaint averments, defendant has kept his second wife with him but he has become totally negligent towards her. During the period, when she was residing with the defendant, she was being ill-treated in cruel-some manner but his attitude and behavior towards his second wife is quite cordial and the plaintiff is not being treated in the same manner by the defendant as he is treating his second wife. The defendant did not arrange and manage to provide maintenance to the plaintiff till 1988 when the suit was filed and despite a notice was sent to him making demand of payment of Mehar, the same has not been paid to her. Hence, on these premised submissions, present suit for dissolution of the marriage under the Act of 1939 has been filed by the plaintiff.

(3.) Defendant-appellant except the facts which are admitted, denied the other plaint averments and specifically denied that his mother, sister or brother-in-law ever ill-treated the plaintiff. It is also pleaded that their behavior is not cruel-some against her. According to the defendant, plaintiff is habitual to live in a city atmosphere and therefore she is not accustomed and to manage herself in the living style of village and because she does not want to live in the village, therefore she was insisting the defendant to live at Seoni which was not possible for him because he is having agricultural land in the village and therefore, he was always advising the plaintiff to change her attitude and life style and should adjust with the village life but her behavior was not changed. Further, it has been pleaded that when plaintiff went to attend the marriage of her cousin brother at Seoni, the defendant also went to attend the marriage. Thereafter, when he asked her to accompany him at his village Mehgaon, she refused and on account of her sweet-will, she is living at Seoni. Eventually, looking to the health condition of mother, which was deteriorating day-to-day, he (defendant) solemnized second marriage in the year 1990. According to the defendant, he is not neglecting the plaintiff and therefore, the suit be dismissed.