RASOOL NAJAR Vs. REHMATI

JUDGEMENT

(1.) THIS is an application against a decree passed by the Sub Judge Anantnag against the defendant. A suit for realisation of dower debt was brought by the plaintiff wife against the defendant husband. It was alleged by the plaintiff that she was married to the defendant some time in the 1956 and as they were not able to pull on well, the defendant divorced the plaintiff in the year 1959. As the dower was fixed at Rs.900 and a part of it was relinquished by the wife, the suit had been brought for the recovery of Rs.500. The defence was that the wife herself tock the divorce in consideration of the relinquishment of the entire dower and, therefore, she was not entitled to any decree for her dower debt. The trial court found that the deed evidencing the divorce and relinquishment of the dower not being signed by the plaintiff, was not binding on her. The learned Judge, however, carne to the conclusion that the dower fixed was only Rs.300 and he accordingly granted a decree for this amount. As the defendant alleged himself to be an agriculturist, the suit was tried under the provisions of the A. R. Act and the trial court has ordered the defendant to pay the decretal amount by installments of Rs.50 per harvest. The defendant has come up in revision to this court against this order of the trial court. It appears that the defendant had filed an appeal before the District Judge Anantnag which was rejected as being incompetent since the suit arose out of the provisions of the A. R. Act.

(2.) MR . Chowdhry appearing for the petitioner has raised two points before me. In the first place, he submitted that the court had no jurisdiction to grant a decree in view of the provisions of Section 2 of the Jammu and Kashmir State Muslim Dower Act. Section 2 of this Act runs as follows: - "Where the amount of dower stipulated for in any contract of dower by a Mohammedan is excessive with reference to the means of the husband, the entire sum provided in the contract shall not be awarded in any suit by decree in favour of the plaintiff, or by allowing it by way of set off, lien or otherwise to the defendant, but the amount of the dower to be allowed by the courts shall be reasonable with reference to the means of the husband and the status of the wife. This rule shall be applicable whether the suit to enforce the contract be brought in the husbands life -time or after his death.

(3.) IT was contended that since the dower fixed by the parties was excessive with reference to the means of the husband, the trial court should have followed the procedure as laid down in this section. This point does not appear to have been argued either before the trial court or before the appellate court. I have gone through the written statement and I do not find any pleading to the effect that the dower at the time of the marriage was excessive with reference to the means of the husband. Section 2 of the Act, quoted above, will operate only where it is pleaded and proved by a party that the dower fixed was excessive with reference to the means of the husband. In his written statement, the defendant has merely said that he is a poor man and is not able to pay the dower debt. This statement is quite different from a kind of the pleading that is required to attract the operation of Section 2 of the Act. It may be that at the time of marriage a persons means may justify the fixation of dower but subsequently he may become unable to pay the same, To such a situation, in my opinion, the provisions of section 2 will not apply The sine quo non of the application of section 2 is that the dower must be excessive with reference to the means of the husband at the time when the marriage concerned is performed. As this point has not been pleaded by the defendant, it cannot be gone into in this suit. The first contention raised by Mr. Chowdhry is, therefore, over -ruled.