MOHD KHAN Vs. SHAHMALI

JUDGEMENT

(1.) THIS is the defendants second appeal and arises out of a suit for dissolution of marriage brought by Mst. Shahmali in the Court of Sub Judge Handwara. The trial court dismissed the suit of the plaintiff. On appeal the learned District Judge Baramulla reversed the judgment and decree of the trial court and decreed the suit of the plaintiff.

(2.) THE case of the plaintiff was that she was married to the defendant Mohd Khan in the year 2007 Bk. and that after the Nikkah ceremony a pre -nuptial agreement dated 25 -7 -2007 was executed by the defendant in favour of the plaintiffs father. According to this agreement the plaintiff had to live as KHANA -DAMAD in the plaintiffs parental house. It was inter alia agreed upon that in case the defendant would leave the plaintiffs house he would pay a sum of Rs. 700.00 to the plaintiff as expenses incurred by the father for the marriage ceremony, and in default of payment of this amount the condition would operate as divorce. The plaintiff further alleged that defendant did not fulfill the condition of the agreement. He ran away from her parental house 4 years before the institution of the suit. He failed to return during these 4 years and has not performed the conjugal obligations. She has not been maintained for all these years, and the treatment of the defendant was cruel and harsh during all these years. The trial court after raising necessary issues in the case held that the plaintiff had failed to establish that the defendant had himself run away from his father -in -laws house. The defendant resided with the plaintiff for quite good number of years. The fact was that the plaintiffs father had himself sent the defendant to Karnah for labour. When the latter returned from Karnah he was refused accesses to his wife. There was thus no question of violation of any condition of the agreement. The case of maltreatment of the wife by the husband was not proved. On appeal the learned District Judge after discussing the evidence existing on the record came to the positive conclusion that the execution of the agreement by the defendant was established. According to the condition in the agreement the defendant had to pay a sum of Rs. 700.00 if he left his father -in -laws house, and if he failed to do so that would operate as divorce. The learned appellate court also found that the defendant had run away from his in -laws house and that notice sent by the wife demanding Rs. 700.00 from the husband had been refused by the latter. On the whole the appellate court did not agree with the contention of the husband that he was deceitfully made to leave the house of the plaintiff.

(3.) AS regards the validity of the agreement the court of first appeal held that this agreement was not in any way opposed to the Muslim Law and was not in any way unconscionable. The violation of the condition by husband entitled the wife to seek divorce from the husband. In fact the violation of the condition itself operated as divorce. The suit of the plaintiff was accordingly decreed.