MT BADRULNISA BIBI Vs. SYED MOHAMMAD YUSUF

JUDGEMENT

(1.) This is an appeal by the plaintiff, Mt. Badrulnisa Bibi, who brought a suit against her husband Syed Mohammad Yusuf under the provisions of Act 8 of 1989 for the dissolution of her marriage, for the recovery of her prompt dower and for the recovery of the goods specified at the foot of the plaint or Rs. 200 on account of the price thereof. The Court below was of the opinion that the dower of the plaintiff was fixed at Rs. 15,000 and she was, therefore, entitled to recover the prompt portion of the dower which would be Rs. 7500. The Court below further gave her a decree for Rs. 200 being the price of the articles left by the plaintiff at the defendant's place. No decree for dissolution of marriage, however, was granted by the Court below, and the question that we have got to decide is whether on the facts established the plaintiff is entitled to a dissolution of the marriage under Act 8 of 1939.

(2.) The plaintiff-appellant did not get her evidence printed, but at the request of Dr. Faruqi appearing on behalf of the plaintiff we have examined the record for ourselves and gone through the evidence adduced by the plaintiff. The evidence consists of the testimony of the plaintiff herself, Mohammad Sirajul Haq her father, Mohammad Razi, Tirath Raj and Mohammad Amin. The Court below was not satisfied on the evidence of these witnesses that any act of cruelty or desertion was established, nor was it clear from this evidence that the plaintiff's case came within either Clauses (2) and (4) of Section 2 or within Clause (8)(a), (d) and (f) of the same section. We have also gone through the evidence produced on behalf of the defendant and the conclusion at which we have arrived is that the parties were married in February 1934 and that either the wife came to the husband's place for just a night (as she herself deposes) or she remained there for a month or so, but she undoubtedly went back to her father's place very soon afterwards. It was then discovered that she was about to be confined and it was thought desirable that she should remain at her father's place for her confinement. This is only natural, but the trouble commenced just after the birth of a child. The parents of Badrulnissa decided to celebrate the occasion and had a nautch which was witnessed by the plaintiff also. This was not to the liking of the husband and he wrote a letter Ex. 1 in October 1935 (the Judge says that Ex. 1 is of October 1935) in which he protested strongly against the action of the wife in witnessing the nautch and he went to the extent of saying that he had given freedom now to the wife and that she might do whatever she liked and he would have nothing to do with her. A careful reading of the letter, however, shows that this was in the nature of a threat as he himself admitted in his evidence, and the letter wound up by saying that if the girl were to apologise within a week the action would be forgiven and forgotten; otherwise thousands of letters after a week would prove useless. We can understand the feelings of the defendant, and we do not agree with the contention advanced on behalf of the learned Counsel for the plaintiff- appellant that the letter operates as a divorce ipso facto. This was a letter written by an irate husband and was couched in furious language, but there was an option given to the wife to offer an apology.

(3.) Apart from this letter there is very little evidence on the record to show that the husband ill-treated the wife. First of all, they never lived together for any length of time and there was not much occasion for any serious quarrel between the two, but it is said on behalf of the appellant that the defendant used to come to the place of the plaintiff's father and quarrels used to take place there. We have reason to believe that the quarrels, if any, were due to the fact that whereas the defendant insisted that the plaintiff should go back to the defendant's house, the plaintiff and the plaintiff's parents were not willing to allow rukhsati. There is a great deal of evidence on behalf of the defendant to the effect that various attempts were made in 1935, 1936 and 1937 by outsiders to bring about a reconciliation and to induce the plaintiff's father to send the plaintiff to the defendant's place, but the plaintiff's father would not listen to it. The plaintiff is apparently the only child of her parents and it may be that out of their misguided love they were not prepared to send the plaintiff to the defendant's place, and this aversion to send, the plaintiff might have led to the fact that the defendant being disgusted with the attitude adopted by the father of the plaintiff married a second time in the beginning of 1938.