RASHID KHAN Vs. JAMILA

JUDGEMENT

(1.) Both these appeals arise out of a judgment and decree dated 5.8.1996 passed by Mr. N.K. Porwal, Seventh Additional Judge to the Court of District Judge. Gwalior, in two different Suit Nos. 149-A/92 and 159-A/92, It appears that One suit i.e. Suit No. 149-A/92 was filed by Rashid Khan against his wife for restoration of conjugal rights with the allegation that he married with respondent Smt. Jamila according to Muslim rites and a sum of Rs. 4,251/- was fixed as Davar on 30.12.1990. Out of this union a son was bom but he expired within a week. It was alleged that the defendant was in the habit of living at her parents' house. On 9.8.1992 she went with her brother and bhabhi for participating in God Bharai Ceremony on 11.8.1992. He went on 27.8.1992 to bring, her back and then his mother Smt. Nattho had said that she will be sent on 11.9.1992. At the time when she had gone to her parents on 9.8.1992 she had taken'with her the articles detailed in para 5 of the ptaint valuing Rs. 40,000/- The defendant on the instigation of her parents .gave a notice on 28.8.1992, She did not return and perform her marital obligations. She also did not return the articles valuing Rs. 40,000/-. The suit was contested by the defendant-wife on various grounds. The marriage was admitted but the amount of Davar alleged by him was contested. It has been alleged that it was Rs. 4,786/-. She pleaded that after the marriage the treatment of the plaintiff-husband was cruel. He used to demand a sum of Rs. 10,000/- and a scooter and on this account her used to beat her. She was turned out of house. She was asked to bring Rs. 10,000/- and scooter else she will be kiiled. She denied the allegation that she had taken the articles as mentioned by the plaintiff. The plaintiff had cultivated bad habits and had fatten in bad society and the articles given in Dahej were wasted by him. Hence the allegation of certain articles had been made falsely. She had filed a suit for divorce. She apprehended danger to her life in living with the plaintiff.

(2.) Suit No. 159-A/92 was filed by Smt. Jamila against her husband for divorce. It was alleged by her that the marriage had taken place on 30.12.1990 and the Dauar fixed was Rs. 4,786A. After'the marriage she went to her in-laws house alongwith articles given by. her parents and relations details of which has been given in the list appended with the plaint. After the marriage the treatment of the defendant was cruel. He used to beat her and used to pressurise her to bring Rs.l0,000/- and scooter from her parents else she will be killed. The husband used to come drunk and he was in the habit of gambling. When she did not give money, she was beaten. Out of the wed lock a son was born which expired. He turned her out and asked her to return with Rs. 10,000/- and a vehicle. On 14.9.1992 he went to her house with some unwanted persons fully armed. At that time she and her bhabhi were present. The defendant and unwanted persons were drunk. They demanded a sum of Rs. 10,000/- from her and when she refused they entered the house and beaten her. They thereafter somehow went away. A report was lodged in the police station on 15.9.1992 in that regard. She apprehended danger to her life and under the circumstances she wanted to get rid of the defendant and hence the suit for divorce was filed. Defendant Rashid Khan contested the claim and. denied the amount of Dauaras Rs. 4,786/-. He said that Dauar was fixed at Rs. 4,251/-. He also denied the allegation of demand of Rs.10,000/- and scooter as well as of cruelty. The allegations made by him in his suit have been reiterated in the written statement which need not be repeated. In the additional pleas it was alleged chat in case the Court was of the opinion that the wife was entitled to divorce it was in the interest of justice that an order for return of arguments, valuing Rs. 40,000/- be passed.

(3.) The learned trial Court framed issues separately in both the suits. No order for consolidation of the suits was, however, passed. It appears that the evidence was actually recorded in one of the cases and a carbon copy was kept in the record of the other. A perusal of the order-sheet shows that evidence of wife Smt. Jamila was recorded initially which states that the case filed by the wife started and copy of the statements were put on the other case. Learned counsel for the appellant contended that the learned Court has given wrong findings of fact. The learned trial Court has decreed the suit of the wife for divorce whereas it dismissed the suit for restoration of conjugal rights. He contended that under the Muslim Law divorce could not be decreed. There are certain pre-conditions. On the other hand. reliance has been placed upon the Dissolution of Muslim Marriages'Act. Learned Counsel for the appellant referred to the provisions of Muslim Persona! Law (Shariyat) Application Act, 1937.