SHAHEEN QURESHI Vs. SHAKIL AHMED

JUDGEMENT

(1.) THIS appeal has arisen out of a suit for restitution of conjugal rights filed by the husband Shakil Ahmed with the allegation that the parties were married on 21. 7. 1989 at Jamna Marriage Bhawan, Dana Oli, Lashkar, Gwalior. The details of presentation have been narrated in Para 2 of the petition which are/ not relevant for the disposal of this appeal. After the marriage the respondent went to her husband's house and on 22. 7. 1989, she went back to her parents' house. Again on 23. 7. 1989 she was brought by the plaintiff-respondent and she remained there till 28. 7. 1989. She went again to her maayaka and returned on 4. 8. 1989. She lived there till 14. 8. 1989. When the plaintiff-respondent returned from his duty he found the house locked and came to know from the neighbours that the petitioner went alongwith a lady and a man and articles. When he made search she met him at her parent's house. She told him as her mother was ailing she will return after she was cured. She gave the key of the house. The plaintiff respondent thereafter made several efforts but the defendant never returned and finally he was asked to live as gharjawai to which he did not agree and she thereafter threatened to implicate him falsely. The fact of marriage has not been disputed by the respondent. The defendant however denied all the allegations and alleged that she was a literate lady having done her M. A. and was employed whereas the plaintiff-respondent had read only upto higher secondary and was employed as a constable. His financial condition was precarious. The real facts were suppressed. The plaintiff and his family members were cruel and soon after the Nikah they started harassing her. They demanded a sum of Rs. 20,000/- to which she showed her inability whereupon her Devar, mother-in-law, sister-in-law and others started abusing her and beating her. They also took away her ornaments. On 2. 8. 1989 the plaintiff went to Rannod where the defendant was working and started threatening her with death. He also caught her and took her to his house and threatened to cut her nose. The house owner as well as other teachers made him to understand and then she was saved. She, therefore, made allegations of cruelty and also alleged that according to Mohammedan Law the plaintiff also divorced her.

(2.) THE learned Trial Court after taking necessary evidence, considered the material on record decreed the suit. Hence this appeal by the wife.

(3.) THE learned Counsel for the appellant contended that the learned Trial Court has not given any specific finding after discussing the evidence on record with respect to the plea of cruelty. He also urged that cruelty is a valid defence to such a suit. In this regard he referred to the Principles of Mohammedan Law by Mulla, 19th edition page 242 Article 281. The next contention of the learned Counsel is that no decree for restitution of conjugal rights could be passed because the amount of Mehar was not paid nor any order was passed by the lower Court in this regard. The defendant however, in his written statement stated that the suit was filed in order to avoid payment of Mehar. At this stage the learned Counsel also referred to an application under Order 6 Rule 17, CPC moved in this Court for permission to amend the written statement by incorporating a plea which is based upon fact as well as law. The learned Counsel urged that there was a controversy before the learned lower Court with respect to the quantum of Mehar because according to the plaintiff-respondent it was Rs. 1,100/- whereas according to the appellant it was Rs. 11,000/ -. The learned Counsel pointed out that a photocopy of Sanad Nikah was filed by the plaintiff which was not proved. No original was brought on record. An application has been moved in this Court for permission to file a document which purports to be a certificate of Shahar Kazi, Dholpur to the effect that there was no Kazi by the name given in Sanad Nikah of which photo copy was produced in the lower Court. The learned Counsel urged that amendment is necessary for complete adjudication of the case and the document is necessary in order to show that the Sanad Nikah produced by the respondent was a got up document and no Kazi existed by that name. He, therefore, urged that amendment should, therefore, be allowed and the case be remanded in order to enable the parties to adduce evidence in this regard. Regarding facts sought to be added by way of amendment the learned Counsel pointed out that on l3. 11. 1991 an application was moved in which an averment was made in that regard but instead of seeking an amendment in the written statement facts were alleged and a prayer was made that the proceedings be stayed till the amount of Rs. 11,000/- was not paid.