Zainaba v. T. A. Abdul Rasheed

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 11TH DAY OF SEPTEMBER 2012/20TH BHADRA 1934 Mat.Appeal.No. 245 of 2008 ( ) -----------------------------OP.85/2007 of FAMILY COURT, KASARAGOD APPELLANT/RESPONDENT: ------------------------------------ ZAINABA, D/O.MOURIABBA ALIAS NASER PASHA, W/O.T.A. ABDUL RASHEED, KUBERA MANSION UDAYAWAR, MANJESHWAR, KASARAGOD TALUK. BY ADVS.SRI.M.S.IMTHIYAZ AHAMMED SRI.SHIRAZ ABDULLA SRI.JOJO PAPPACHAN RESPONDENT(S)/PETITIONER: --------------------------------------- T.A.ABDUL RASHEED, S/O.MUHAMMED KUNHI, RAHINA VILLA, THIRUVAKOLI PALLIKARA VILLAGE, P.O.BEKAL, HOSDURG TALUK KASARGOD DIST. BY ADV. SMT.CHINCY GOPAKUMAR THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 08-082012, ALONG WITH MA. 896/2011, THE COURT ON 11-09-2012 DELIVERED THE FOLLOWING: ## **C.R.** ## **K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------Mat. Appeal Nos.245 of 2008 & 896 of 2011 ----------------------------------------------Dated 11[th] September, 2012. J U D G M E N T** ## **Joseph Francis, J.** Mat. Appeal 896 of 2011 is filed by the respondent/husband in O.P.No.251 of 2010 on the file of the Family Court, Kasaragod. The respondent is the petitioner/wife in that Original Petition, which was filed by her under Section 7 (1)(a) of the Family Courts Act, 1984 and Section 2(ii), (viii)(a) and (d) and (ix) of the Dissolution of Muslim Marriages Act, 1939 (for short, 'the Act'). Mat. Appeal No.245 of 2008 is filed by the respondent/wife in O.P.No.85 of 2007 on the file of the Family Court, Kasaragod. The respondent is the petitioner/husband in that Original Petition, which was filed by him for restitution of conjugal rights. Since the parties in both the appeals are the same and the questions involved are interconnected, the above appeals are disposed of by this common judgment. 2. The averments of the petitioner/wife in O.P.251 of 2010 are briefly as follows : The marriage between the Mat. Appeal Nos.245 of 2008 & 896 of 2011 2 petitioner and the respondent was solemnized on 18.5.2003 as per the customs prevailing in the community. Nikah ceremony was performed on 18.5.2003 and the 'Veettukudal' function was conducted on 14.3.2004. No children are born in the wedlock. Prior to the marriage proposal, the respondent had contracted another marriage, which was divorced. No demand for dowry was made from the side of the respondent at the time of marriage proposal. The petitioner's father is a psychiatric patient. At the time of marriage, the petitioner had completed her First Year B.Com. degree course and was preparing for the Second Year. The petitioner accepted the marriage proposal on condition that she should be allowed to complete her higher studies. After the Nikah ceremony, the respondent and his family members insisted the petitioner to discontinue her studies. When the family members of the petitioner conveyed the information regarding discontinuance of her studies, the respondent insisted for payment of Rs.5,00,000/- and 200 sovereigns of gold ornaments as dowry. He also demanded a car, but the petitioner's parents were not in a position to purchase a car. With the help of the relatives, the parents of Mat. Appeal Nos.245 of 2008 & 896 of 2011 3 the petitioner gave 183 sovereigns of gold ornaments. After a few days of the marriage, the respondent and his family members started to ill-treat the petitioner demanding dowry of Rs.5,00,000/- and a car. Many of the gold ornaments were pledged by the respondent in his name. On 24.12.2004 the grandfather of the petitioner was hospitalized. Even though all the family members visited him in the hospital, the respondent did not take the petitioner to see her sinking grandfather. After two days, the grandfather died. The respondent threatened her while going to the hospital that if she disclosed to others the reason of her swelling on the face, she would be killed. On 27.11.2005 when the petitioner and the respondent were to attend the house-warming ceremony of one Mr.Navas and Arifa, the respondent pointed a revolver on the head of the petitioner. On 12.2.2007, the respondent took the petitioner to her house and left there. On 15.2.2007 at 2 p.m., the respondent came along with his family members and entered into the petitioner's room and asked for money. On 14.3.2007, the father of the respondent came to the house of the petitioner and asked them to forget all the past incidents. The Mat. Appeal Nos.245 of 2008 & 896 of 2011 4 Manjeshwar Police has registered Crime No.137/2007 against the respondent and his family members. The police filed charge sheet against the respondent and it is now pending before the C.J.M.Court, Kasaragod for the offence under Section 498A I.P.C. The Original Petition filed by the respondent seeking restitution of conjugal rights (O.P.No.85 of 2007) was decreed on 13.2.2008. The petitioner filed Mat. Appeal No.245 of 2008 against the said judgment. The respondent treated the petitioner with cruelty, both mental and physical. The respondent neglected her and failed to provide maintenance to her for the last more than two years continuously. There is an irretrievable break down in the marital relationship. The respondent has misappropriated and disposed of her gold ornaments given to her at the time of marriage. On the above allegations, the petitioner prayed for a decree for dissolution of marriage. 3. The respondent/husband filed counter contending as follows : The petition is premature and not maintainable in law. The petitioner had filed Mat. Appeal No.245 of 2008 against the decree for restitution of conjugal rights passed in Mat. Appeal Nos.245 of 2008 & 896 of 2011 5 favour of the respondent. The decree passed by the Court is still in force and only the implementation is suspended. Hence this petition for divorce is not maintainable. It is true that the 'Nikah ceremony' was solemnized on 18.5.2003 and the 'Veettikoodal' ceremony was conducted on 14.3.2004. The 'Veettikoodal' ceremony was delayed because the father of the respondent could not come from Singapore prior to March, 2004. The petitioner in her complaint filed before the C.J.M. Court, Kasaragod stated that she was maintaining a diary writing the events of the days after the Nikah and she left the same in the house of the respondent. The Manjeshwar Police has seized the diary and produced before the C.J.M. Court, Kasaragod. The events written by her in the diary reveals the true picture. The petitioner had only 1 ½ sovereigns of gold ornaments at the time of fixation of marriage. The respondent never pledged gold ornaments belonging to the petitioner. The averment that the respondent did not take the petitioner to visit her grandfather is false. The petitioner's grandfather died on 18.12.2004 at Unity Hospital, Mangalore. It is true that the house warming ceremony of Mr.Navas was on 27.11.2005 at Mat. Appeal Nos.245 of 2008 & 896 of 2011 6 Mogral. The averment that the respondent used to point the revolver to the petitioner and threatened her is false. The petitioner is only a stooge in the hands of Navas, who is the husband of elder sister of the petitioner. The petitioner is not entitled to relief under the provisions alleged in the petition. The petition is liable to be dismissed. 4. In O.P.No.251/2010, the petitioner/wife was examined as PW1, the respondent/husband was examined as RW1 and Exts.B1 to B3 were marked. The Family Court, on considering the evidence on record, allowed divorce under Section 2(ii) and (ix) of the Act and the prayer for divorce under Section 2(viii)(a) and (d) was disallowed. Against the judgment and decree allowing divorce under Section 2(ii) and (ix) of the Act, the respondent/husband in that Original Petition filed Mat.Appeal No.896 of 2011. 5. The husband filed O.P.No.85 of 2007 before the Family Court, Kasaragod for restitution of conjugal rights as the respondent/wife allegedly left his company on 12.2.2007 without any reasonable cause. The respondent/wife filed a detailed counter contending that the petitioner/husband and his Mat. Appeal Nos.245 of 2008 & 896 of 2011 7 family members treated her with cruelty and the petitioner/husband assaulted her and she was driven out of the house. The gold ornaments of the respondent were forcibly removed and misused by the petitioner. In that Original Petition , PW1, RW1 and RW2 were examined and Exts.B1 and B2 were marked. The Family Court, on considering the evidence on record, allowed that Original Petition on finding that the respondent was not at all justified in denying her company to the petitioner and the respondent was directed to return to the consortium of the petitioner within a period of two months from 13.2.2008. Against that judgment and decree, the respondent/wife filed Mat. Appeal No.245 of 2008. 6. The learned counsel for the appellant/husband in Mat.Appeal No.896 of 2011 raised the following contentions, at the time of argument : The Family Court ought not to have found that the petitioner therein deserved dissolution of marriage under Section 2(ii) of the Act, especially when the wife without any reason refused to stay with the husband in spite of an order for restitution of conjugal rights. While allowing the petition under Section 2(ix) of the Act, the Family Court did not Mat. Appeal Nos.245 of 2008 & 896 of 2011 8 consider the position of the respondent/husband who holds a decree for restitution of conjugal rights in his favour. The Family Court ought to have found that the petitioner/wife herself has deserted her husband who has never neglected his wife. The finding of the court below that the respondent therein has failed to maintain the petitioner is highly unreasonable. The decision relied on by the Family Court to allow the petition for dissolution of marriage between the parties is not applicable to the facts of this case. 7. The learned counsel for the appellant further submitted that since the divorce decree is liable to be set aside, the respondent/wife is bound to obey the decree for restitution of conjugal rights. The learned counsel for the respondent/wife supported the judgment and decree in O.P.No.251 of 2010 and submitted that since the divorce decree is passed dissolving the marriage, decree for restitution of conjugal rights passed in O.P.No.85 of 2007 has become infructuous. 8. The main question to be answered in these appeals is whether the Family Court is justified in passing the decree for divorce under Section 2(ii) and (ix) of the Act and if it Mat. Appeal Nos.245 of 2008 & 896 of 2011 9 is justified, what would be the fate of the decree for restitution of conjugal rights passed in O.P.No.85 of 2007. 9. Under Section 2(ii) of the Act, the wife is entitled to obtain a decree for dissolution of marriage, if the husband has neglected her or has failed to provide maintenance to her for a period of two years. There is nothing in the wording of Section 2(ii) of the Act to suggest that the failure to maintain the wife must be wilful. 10. In O.P.No.251 of 2010, it is specifically stated by the petitioner/wife that the respondent has neglected her and failed to provide maintenance to her for the last more than two years continuously and under these circumstances, the petitioner is entitled to get a decree for dissolution of marriage under Section 2(ii) of the Act. In answer to this, the respondent/husband in his counter stated that he has not at all neglected her and failed to provide maintenance to her and that the wife, who is living separately without any cause is not entitled to get separate maintenance under the Mahomedan Law or any other law. It is further stated that the petitioner has not even obeyed or complied with the order of the Family Court Mat. Appeal Nos.245 of 2008 & 896 of 2011 10 in O.P.No.85 of 2007, directing restitution of conjugal rights. In that Original Petition , the petitioner/wife was examined as PW1 before the Family Court on 24.8.2011. PW1 deposed in chief examination that since 17.3.2007 till date, the respondent/husband has not paid maintenance to her. This version of PW1 is not challenged by the respondent/husband in cross examination. The respondent/husband was examined before the Family Court in that case on 29.9.2011 as RW1. In chief examination, he has no case that he had paid maintenance to the petitioner/wife. In cross-examination, RW1 admitted that they were living separately from 12.2.2007 onwards and that he had not given maintenance to the wife thereafter. RW1 has no case that he did not give maintenance to her as she did not comply with the decree for restitution of conjugal rights in O.P.No.85 of 2007. ## 11. In the decision reported in **Muhammed Ashraf** ## **v. Nadeera** (ILR 2000(3) Kerala 445), it was held thus : “In the present case legislature has not made the ground for divorce under clause (ii) conditional that neglect or failure to provide for maintenance of the wife is without a reasonable cause. On the other hand we find in clause (iv) which provides Mat. Appeal Nos.245 of 2008 & 896 of 2011 11 another ground for divorce such a specific condition is added. It provides that the wife would be entitled to seek divorce on the ground that the husband has failed to perform his marital obligations for a period of three years 'without reasonable cause'. When the very same legislature under the very same section has added the condition 'without reasonable cause' in clause (iv), but omitted the same in clause (ii), it is not for this court to add that condition under clause (ii) also. x x x x x x x x x x x x x As the clause itself enacts that a right to a dissolution will be the consequence of an omission to maintain, every omission to maintain must be spoken of as a failure to maintain in this enactment. The fact that there are no further qualifying words is sufficient to show that nothing more than an omission to maintain could possibly be intended.” ## 12. In the decision reported in **Veeran Sayvu Ravuthar v. Beevathumma** (2002(2) KLT 741), it was held in paragraph 19 as follows : “19. Thus, the consistent view taken by this Court is that "the construction of Clause (ii) of S. 2 is in consonance with the Islamic law on the subject..... There is therefore no justification in introducing the words "without reasonable cause" into Clause (ii). The Legislature in its wisdom by providing those words in clause (iv) has not thought it necessary to provide this restricting in Clause (ii). "Accordingly this Court held that a wife under such circumstances, even if she had contributed for not to maintain her or even if she was not entitled for maintenance, could Mat. Appeal Nos.245 of 2008 & 896 of 2011 12 have applied for dissolution of marriage under S. 2(ii) on the ground that the husband had neglected or failed to provide for her maintenance for a period of two years. When the consistent view followed by this Court in these three decisions, accepting the view taken by Tayabji, C.J., in _Noorbibi's_ case, is so clear, there is no reason at all for reconsideration, taking into account the phraseology used in S. 2(ii) as compared to S. 2(iv). The excuse if any put forth by the husband in maintaining the wife is not at all a relevant consideration while considering the ground for dissolution of marriage by the wife under S. 2(ii) of the Act. So we are in respectful agreement with the view taken by this Court in the earlier decisions in _Yousuf Rawthan, Aboobacker Haji_ and _Moosa's_ cases.” 13. In the present case, it is not disputed that the respondent/husband failed to maintain the petitioner/wife for more than two years. Therefore, the Family Court was justified in granting a decree for divorce under Section 2(ii) of the Act. 14. In the Original Petition, it is alleged by the petitioner/wife that there is irretrievable break down of the marital relationship and therefore, the petitioner is entitled to get divorce under Section 2(ix) of the Act. In the counter, it is stated by the respondent/husband that there is no irretrievable break down of the marital relationship. RW1 admits that from Mat. Appeal Nos.245 of 2008 & 896 of 2011 13 12.2.2007 onwards, PW1 is residing separately and that she is not interested in residing with him and that PW1 filed a complaint before the Police, alleging offence under Section 498A of the I.P.C. 15. Section 2(ix) of the Act makes statutory provision for the wife for dissolution of marriage on the ground which is recognised as valid for the dissolution of marriage under the Muslim Law. This Court, in the decision reported in **Mohammed v. Sainaba Umma** (1987(1) KLT 712) held that Section 2(ix) of the Act is really in the form of a residuary ground where the courts have an area of discretion. In that case, the wife lived separately for a number of years and she prayed for dissolution of marriage on the ground of irretrievable break down of marriage. This Court held that in such circumstances, Islam concedes the right to the wife to seek dissolution of marriage on the ground of Khula. ## 16. In **Amna Khatoon v. Kashim Ansari** (AIR 2001 Jharkhand 28), the Jharkhand High Court dissolved a marriage under Section 2(ix) of the Act on the ground of irretrievable break down of marriage. In the present case, it Mat. Appeal Nos.245 of 2008 & 896 of 2011 14 has come out in evidence that the marriage between the petitioner and the respondent was irretrievably broken down. Therefore, the Family Court was perfectly justified in granting a decree for dissolution of marriage under Section 2(ix) of the Act. Therefore, we are of the view that Mat. Appeal No.896 of 2011 is liable to be dismissed as it is without any merits. 17. It is well settled that in appropriate cases, the appellate court can take subsequent events into consideration in order to do complete justice between the parties. Since the marriage between the petitioner and the respondent in O.P.No.85 of 2007 on the file of the Family Court, Kasaragod is dissolved as per the judgment and decree in O.P.No.251 of 2010, the decree for restitution of conjugal rights granted in O.P.No.85 of 2007 has become in-executable. Therefore, Mat.Appeal No.245 of 2008 has to be allowed and the judgment and decree in O.P.No.85 of 2007 on the file of the Family Court, Kasaragod has to be set aside. 18. Accordingly, Mat. Appeal No.896 of 2011 is dismissed as it is without any merits. Mat. Appeal No.245 of 2008 is allowed and the judgment and decree in O.P.No.85 of Mat. Appeal Nos.245 of 2008 & 896 of 2011 15 2007 on the file of the Family Court, Kasaragod is set aside and that Original Petition is dismissed. The parties are directed to suffer their respective costs in both the appeals. Sd/- ## **K.T.SANKARAN, JUDGE.** Sd/- **M.L.JOSEPH FRANCIS, JUDGE.** tgs (true copy)