Mst. Shahmali vs Abdul Rahman Hajam

G.M. Mir, J.—This Civil Second Appeal arises out of the following facts.

The plaintiff-appellant filed a suit for the dissolution of marriage with the defendant-respondent in the court of Munsiff Kulgam alleging inter alia

physical and mental cruelty being perpetrated against her by her husband the respondent. The respondent at the trial denied the existence of all the

charges on the basis of which the dissolution of marriage had been sought. He specifically denied having caused any mental or physical or any other

type of cruelty to the appellant. The following issues were framed by the trial court on the basis of pleadings:

1) Whether the plaintiff's father had contracted the plaintiff's marriage in greed during her minority? O.P.P.

2) Whether the defendant was beating the plaintiff and had subjected her to mental cruelty? O.P.P.

3) Whether the defendant had turned out the plaintiff three years before without clothing and thereafter has not maintained her? O.P.P.

4) Whether the defendant had leveled false charge of adultery against her and therefore put her to mental worry? O.P.P.

5) Whether the plaintiff has no cause of action? O.P.D.

6) Relief? O.P.P.

Both the parties led evidence and the learned trial court after a careful appreciation of the same passed a decree for dissolution of marriage on

the basis that the appellant had been successful in proving issues Nos. 2 and 4, and in consequence held that the respondent has been proved to

have caused mental and physical cruelty to the appellant and also that false allegations of unchastity have been leveled by him against his wife. With

regard to the rest of the issues the trial court was of the view that the plaintiff has not been able to prove the issues. The trial Court held that there

was ample evidence on record to show that the appellant had been subjected to incessant beating by the respondent and that the respondent has

been leveling false charges of adultery against the appellant. On the basis of the evidence therefore the trial court decreed the suit of the plaintiff-

appellant, vide its order dated 22-3-1975. The defendant-respondent took an appeal to the District Judge Anantnag. The learned first appellate

court took a different view of the evidence produced by the plaintiff-appellant in the trial court and was of the opinion that the trial court has not

assessed the evidence in the manner it should have. It was further observed by the learned first appellate court that the evidence led by the plaintiff-

appellant in the trial Court was so loose and incoherent and self contradictory that no reliance can be safely placed on such evidence. The learned

1st appellate court came to the conclusion therefore that the plaintiff-appellant had failed to establish her case with regard to cruelty and false

imputations of adultery. The judgment and decree of the trial Court was therefore set aside and the suit of the plaintiff-appellant was ordered to be

dismissed. It was against this order of the first appellate court that this second appeal has been filed.

The learned counsel appearing for both the parties confined their arguments before me only with regard to issues Nos. 2 and 4. The contention

of the learned counsel for the plaintiff-appellant was that the learned first appellate court has come to a wrong and illegal and unwarranted

conclusion with regard to the evidence produced by the plaintiff-appellant. According to him the plaintiff-appellant had produced a number of

witnesses who had deposed that they had witnessed themselves several times the respondent-defendant beating the plaintiff-appellant. According

to him there was further ample evidence on record to establish that the husband leveled false charges of unchastity against his wife. It was therefore

submitted by the learned counsel for the appellant that the appreciation of the evidence made by the first appellate court was entirely illegal and on

this ground alone the judgment and decree passed by the first appellate court deserves to be set aside. On the other hand the argument of the

learned counsel for the defendant-respondent was that though there was some evidence on record to show that the respondent-defendant had

leveled charge of adultery against the plaintiff-appellant, but there was no evidence to show that this charge of adultery was baseless. He submitted

that what the witnesses of the plaintiff-appellant had stated was that the defendant-respondent accused her of adulterous character. According to

him the witnesses as well as the appellant herself had used the word 'Tuhmat' which does not connote false imputation but only an imputation which

may or may not be false. His submission was that the word 'Tuhmat' does not mean that the respondent really believed that his wife was having

illicit connections with some other people and therefore according to him the respondent was not liable to have caused cruelty by conduct to the

plaintiff-appellant. He vehemently supported the judgment of the first appellate court stating that the assessment of evidence made by the first

appellate court was quite reasonable and urged that the appeal be dismissed.

Before I go through the evidence led by the parties in the trial Court, it is necessary to dispose of the question of maintainability of this second

appeal raised by the learned counsel for the defendant-respondent though not vehemently. The law in the State of Jammu and Kashmir with regard

to the maintainability of the second appeals was slightly different from that prevailing in rest of the country.

Section 100 of the J. & K. CPC was almost identical to Section 100 of the Indian CPC but with one exception. In Section 100 of the Jammu

and Kashmir CPC Cl. (d) has been added. Rest of the clauses being the same as in the Indian Code of Civil Procedure. Clause (d) of the CPC

prevailing in this state is as follows:

Where the decision of the first court in a suit in which the value of the subject-matter exceeds Rupees 100/- has been varied or reversed by the

lower appellate court, on the ground that the decision is against the weight of the evidence in the case.

As the second appeal was based on the submission that the first appellate court has decided the appeal on the wrong appreciation of evidence, it

was obvious that the second appeal under Cl. (d) of the J & K CPC was maintainable.

The plaintiff-appellant in the trial Court has examined Rehman Dar, Yousuf Malik, Gh. Mohd. Hajam, Abdul Rehman Hajam. Gh. Rasool

Hajam, Abkar Hajam and Ali Hajam as her witnesses and her own statement has also been recorded. Rehman Dar in his deposition has clearly

stated that the respondent leveled charges of adultery against his wife. He has also stated that the respondent has been beating the plaintiff-

appellant off and on. It was true that in the cross-examination he has stated that the beating did not take place in his presence, but with regard to

the charge of adultery he has been firm and has categorically stated that it was in his presence also that the respondent leveled such a charge

against the plaintiff-appellant. He has further deposed that the respondent was in the habit of leveling such charges against the appellant whenever

he would see her speaking to any third person. Abdul Rehman P. W. has deposed that the defendant-respondent was in the habit of leveling false

charges of adultery against his wife. According to him charge was leveled always whenever the plaintiff-appellant happened to talk with anybody

outside the house. The witnesses has further deposed that once the respondent even accused his wife of having illicit relations with her brother-in-

law. This witness however has stated that it was at the house of the plaintiff-appellant he heard that such charges are being leveled against her.

Yousuf Malik another witness of the plaintiff-appellant has also deposed in the same strain. Next witness Gh. Rasool Hajam has deposed that the

respondent had been beating the appellant and that he leveled charges of adultery against his wife several times. Akbar Hajam P.W. who had gone

to see the respondent and tried to intervene in the dispute between the parties was told by the respondent that he would not accept her back as

she was in the habit of committing adultery. Ali Hajam P.W. has also firmly stated that the respondent was in the habit of accusing the plaintiff-

appellant of committing adultery. He has further stated that before the suit was instituted by the plaintiff-appellant he went to the respondent and

requested him to take back his wife, but the defendant-respondent told him that she was a bad charactered woman and therefore he told him he

was not prepared to accept her back as his wife. The plaintiff-appellant in her own statement has stated that from the inception of the marriage she

has been ill treated by her husband who has been leveling charges of adultery against her. As against this evidence of the plaintiff-appellant, the

defend ant-respondent has also produced a number of witnesses whose statements are in the nature of nugatory statements and all of them have

stated that the respondent never beat his wife nor leveled any charge of adultery against her.

I have given thoughtful consideration to the evidence on the record and feel that there was enough legal evidence to show that the plaintiff-

appellant had successfully established her case against her husband with regard to mal-treatment and false accusation of adultery. There is

preponderance of evidence in favour of the proposition that the respondent has been ill treating his wife and has on several occasions not hesitated

even accusing her of adultery. She has been accused of having illicit intercourse even with her brother-in-law. Whenever she spoke with anybody

she was being suspected and plainly told that she was having adulterous relations with that person. In my view it was established on evidence that

the plaintiff-appellant has been accused of adultery by her husband. On going through the evidence I find no justification for the observations made

by the learned first appellate court when it said in its judgment that the statements of the witnesses for the plaintiff-appellant were vague and

incoherent. The learned counsel for the defendant-respondent being aware of the nature of the evidence did not press that there was practically no

evidence with regard to the accusation of adultery. He however vehemently submitted that the witnesses of the plaintiff-appellant had used the

word 'Tuhmat' which according to him was not the same as false imputation or accusation. I am however unable to accept this view of the learned

counsel for the respondent. As we know the word 'Tuhmat' is an urdu word but the word is in common use in Kashmiri also. Whatever its meaning

may be in Urdu but in Kashmiri the word 'Tuhmat' means a false accusation and not only an accusation which may or may not be false. It is true

that the word 'Tuhmat' has been used by the witnesses of the plaintiff-appellant and they have not preceded the word by 'Galat' but to me it

appears that it makes no difference as it was apparent that the word 'Tuhmat' had been used by all of them in their depositions in the sense which

connotes that the accusation was baseless.

The respondent has undoubtedly repeatedly accused his wife of a false charge of adultery in presence of all and sundry. This has obviously

created a situation for the wife which has made her life miserable. This was a clear case of cruelty by conduct even if such conduct did not amount

to physical ill treatment. The wife was entitled to seek divorce under sub-clause (a) of Cl. (viii) of Section 2 of the Jammu and Kashmir Dissolution

of Muslim Marriages Act. She was entitled to a decree of dissolution of marriage under the circumstances that have been brought out in the

evidence.

The appeal therefore is allowed and the judgment and decree passed by the first appellate court is set aside and the judgment and decree of

the trial Court is restored. The plaintiff-appellant is held to be entitled to the decree of dissolution of marriage with the respondent. A decree for

dissolution of marriage between the parties is therefore passed but under the circumstances of the case no order is made with regard to costs.