MOHD KHAN Vs. SHAHMALI

JUDGEMENT

(1.) THIS is defendants appeal by leave against the judgment of a learned Single Judge of this Court, Main Jalal -ud -Din J. It arises out of a suit for dissolution of marriage under the Muslim Law. The suit was primarily based on an agreement deed dated 25th Katik, 2007 executed by the defendant. The agreement deed was pre -faced with the observation that the defendant was brought as a Khanadamad and contracted into marriage with the plaintiff and then proceeded to provide that the defendants father -in -law Ahmad Khan had undertaken to defray the expenses of the marriage ceremony to be held within a few days on the following conditions. - (1) That the defendant will reside in the house of his father -in -law for all his life and also serve his father -in -law sincerely and faithfully, (2) That in lieu of his being a resident son -in -law, the defendants wife shall inherit 1/2 share of her fathers property, the other half going to his elder daughter who was also a Khananishin daughter; (3) That in case the defendant left his father -in -laws house before time, he will not be entitled to have the company of his wife unless he paid the marriage expenses and so also the usual ceremonial charges to his father -in -law. In that case he will not also be entitled to receive any share from his property; (4) That the marriage expenses approximately amount to Rs. 400/ - and the ceremonial charges to Rs. 300/ - totalling in all to Rs. 700/ - which will be payable by the defendant if he left the house and not so if he was driven out. (5) That incase the defendant made default in the payment of 700/ - his wife shall stand divorced three times.

(2.) THE plaintiffs case in the trial court was that in violation of the terms of the agreement the defendant had left her fathers house four years before, and also failed to pay the stipulated amount despite notice with the result that the divorce clause had become effective. She further alleged that the defendant was guilty of cruelty. The trial court dismissed the suit holding that the cruelty was not proved nor also the violation of the terms of the agreement because the defendant had not left father -in -laws house of his own accord. On appeal, the learned District Judge Baramulla held that the defendant had left his father -in -laws house of his own volations and also failed to pay Rs. 700/ - despite notice and as such the divorce had become effective. In that view he decreed the suit. On second appeal Mian Jalal -ud -Din J. upheld the decree but granted leave to the defendant to go in further appeal under the letters -patent.

(3.) TWO questions arise in this appeal before us. These are: - (1) Whether the divorce clause in its present form is enforceable? (2) Whether on the proved facts and circumstances of the case the divorce has become effective in the context of the premises set out for the same in the agreement deed?