NURJAHAN BIBI Vs. MD KAJIM ALI

JUDGEMENT

(1.) This second appeal is by the plaintiff Nur Jahan Bibi against the judgment and the decree passed by the Additional District Judge, Murshidabad in the first appeal seting aside the decision of the learned Munsif of the trial court decreeing the suit of the plaintiff.

(2.) Nur Jahan Bibi filed the original suit against the defendant Md. Kejem Ali for dissolution of her marriage with the latter. The allegation of the plaintiff is that she was married with Kajem Ali according to Mahommedan Law. In the year 1964, she brought a suit against the defendant for dissolution of her marriage. In that suit the defendant submitted a written statement and therein he stated that the plaintiff was of bad character, that she was enamoured of one Asgar Ali and that she committed adultery with him. During evidence also the defendant made such statement. In consequence of these statements of the defendant, she is entitled to dissolve her marriage with the defendant on the basis of 'Li'an'. It has been alleged by the plaintiff that those allegations are false and they were not retracted by the defendant. The defendant Kajem Ali filed a written statement and his defence is that whatever statements he made in the previous written statement and during evidence were true and the present suit is not maintainable. Other material allegations made by the plaintiff against the defendant have been denied. The learned Munsif decreed the suit in favour of the plaintiff on ground that as the defendant failed to prove that the plaintiff had committed adultery with Asgar Ali, the plaintiff would be entitled to the decree prayed for. The plaintiff examined herself alone on her side, but the defendant besides himself examined several other witnesses. The learned Munsif was of the view that the wife should always be presumed to be devoted to her husband and when the defendant failed to prove the allegation of adultery against her, the learned Munsif was inclined to accept the evidence of the plaintiff as true. In the appeal the learned Additional District Judge in order to appreciate the allegation of the plaintiff as to whether the statements made in the previous suit amounted to a charge of adultery, on the prayer of the respondent-plaintiff and for ends of justice, admitted in evidence without objection from the side of the appellant, the deposition of the defendant given in the previous suit. The said deposition was marked Exhibit 3. On consideration of the pleadings of the parties as well as of the evidence of the defendant in the previous suit, the learned Additional District Judge held that the statements made in the previous suit did not amount to any charge of adultery which would give right to the plaintiff to dissolve her marriage with the defendant. On this finding the appeal was allowed with the setting aside of the judgment and the decree of the trial court and the suit was dismissed. Against that decision the present appeal has been taken to this Court

(3.) I have heard Mr. Islam, the learned Advocate appearing on behalf of the appellant and Mr. Roy for the respondent.