Shri Abdul Raiman Shaikh vs Smt. Mubina Ismail Shaikh

F.M. Reis, J.—Heard Shri I. Agha, learned Counsel appearing for the Appellant and Shri M. Salkar, learned Counsel appearing for the Respondent. The above Appeal challenges the Judgment and Decree passed by the learned Civil Judge, Senior Division, Vasco da Gama, dated 16.04.2007, in Matrimonial Petition no. 19/2005/A whereby the suit filed by the Appellant for divorce under Article 4(4) of the Law of Divorce as in force in the State, came to be dismissed.

During the course of the hearing of the above Appeal, both the learned Counsel have produced settlement terms duly signed by the parties and their respective Advocates dated 12.04.2012, inter alia, stating that the divorce as prayed for by the Appellant be allowed and the marriage between the Appellant and the Respondent be dissolved by divorce in terms of Article 4(4) of the Law of Divorce. But, however, taking note of the provisions of Article 18 of the Law of Divorce which, inter alia, provides that a suit for divorce shall not be decreed on the basis of admission by the Defendant, I found it appropriate that the above Appeal is to be disposed of on merits. The said settlement terms are marked ''X'' for identification.

The Appellant filed the suit contending, inter alia, that he got married to the Respondent on 26.11.2004 and, that thereafter, hey performed a religious ceremony in accordance with the Muslim custom. It is further the case of the Appellant that the Respondent started ill treating the Appellant by openly criticizing and insulting him in front of his friends and relatives. It is further his case that he used to any how make the Respondent understand that his position is not strong enough to rent or purchase any house. He has further stated at paras 6, 7, 8 of the plaint, various incidents which occurred after their marriage, which according to the Appellant, was ill treatment meted out by the Respondent. It is further borne out from the records that the Respondent left the conjugal domicile and started residing in a separate house along with her family.

The Respondent filed written statements disputing the claim put forward by the Appellant. The fact of ill treatment has been disputed by the Respondent. It is further her case that the Appellant himself wanted to live separately from his family and for making such arrangements, he was demanding from the Respondent different items as mentioned at para 3 of the written statement. The Respondent, as such pointed out, that the suit deserves to be dismissed.

The learned Judge after framing the issues and recording of evidence, by the impugned Judgment and Decree dated 16.04.2007, dismissed the suit filed by the Appellant. The learned Judge while appreciating the evidence on record has come to the conclusion that the allegations made by the Appellant with regard to ill treatment have not been corroborated by the Appellant by examining any independent witness and further found that the Appellant have failed to establish his case to get the marriage dissolved in terms of Article 4(4) of the Law of Divorce.

Being aggrieved by the said Judgment and Decree, the Appellant has preferred the present Appeal.

Shri Agha, learned Counsel appearing for the Appellant has assailed the impugned Judgment on the ground that the learned Judge has failed to consider that apart from examining Pw.1, who is the Appellant herein, there were other witnesses examined by the Appellant which include his friends as well as other relatives who have categorically stated that the Respondent had ill treated the Appellant in their presence. Learned Counsel has taken me through the evidence of Pw.2 as well as Pw.3 and pointed out that the facts which have been narrated by the Appellant in his examination in chief and the affidavit, have been specifically corroborated by the witnesses inasmuch as they have stated the insults levelled by the Respondent, were in their presence. Learned Counsel further pointed out that before the filing of the suit, an attempt was made by the Appellant to reconcile with the Respondent by sending a letter to the Muslim Association in order that the parties could try and sort out the matter amicably. Learned Counsel further pointed out that in the letter received from the said Association, there is a categorical statement made therein that despite of the attempts made by the said Association, the Respondent and her family members failed to accede to the request made by the Appellant. Learned Counsel further pointed out that the incidents which have been clearly established by the Appellant conclusively establish ill treatment meted out by the Respondent. Learned Counsel has taken me through the impugned Judgment passed by the learned Trial judge and pointed out that the learned Judge has erroneously appreciated the evidence on record and has dismissed the suit filed by the Appellant. Learned Counsel as such submits that the impugned Judgment and Decree deserves to be quashed and set aside.

On the other hand, Shri Salkar, learned Counsel appearing for the Respondent, has submitted to the orders of this Court. Learned Counsel further did not dispute the fact that the incidents which have been narrated by the Appellant in his evidence as well as in his deposition before the Court would otherwise amount to ill treatment in terms of Article 4(4) of the Law of Divorce. Learned Counsel has further pointed out that the Appellant has failed to establish the said incident and, as such, the question of granting the divorce on such ground without any evidence on record to that count does not survive. Learned Counsel as such submits that the Appeal be dismissed.

Having heard the learned Counsel and on going through the records, the following point for determination arises in the present Appeal :

POINT FOR DETERMINATION

(1) Whether the learned Trial Judge was justified to come to the conclusion that the Appellant has failed to establish the ground under Article 4(4) of the Law of Divorce whilst passing the impugned Judgment ?

In support of his claim, put forward in the suit, the Appellant has examined himself as Pw.1. On perusal of his affidavit, he has stated at para 3 of the affidavit, that even before one month was over after the marriage, the Respondent started pressurizing the Appellant and create a scene in the house by trying to create a rift between him and his family members. He has further stated that during the course of such process, the Respondent was ill treating the Appellant in front of his friends and relatives. He has further stated that all her demands were made despite of the fact that she knew very well his position was not strong enough to rent or purchase a separate dwelling house. He has further stated at para 5 of his affidavit about some of such incidents. There are other incidents narrated by the Appellant at para 8 of the said affidavit. He has further stated that he had written to the President of the Jamat Masjid, at Vaddem, Vasco, about the ill treatment meted out to him by the Respondent and called upon him to intervene to sort out the matter.

In the cross examination, he has stated that the Respondent had complained suddenly about his mother and one day she told that his mother advised her to stay separately. The said allegation was disputed by his mother. He has further stated in the cross examination other incidents wherein Respondent would demand luxury items after seeing other young couples behaving in a manner despite of the status of the Appellant.

On perusal of the cross examination of Pw.1, I find that there is no serious challenge to the incidents narrated by the Appellant in the affidavit as well as in his depositing by the Respondent. Hence, on the basis of the deposition of the Appellant, the incidents which have been narrated by the Appellant in his examination in chief cum affidavit would have to be accepted. It is also to be noted that in the letter addressed by the Appellant at exhibit 25, the Appellant had clearly made allegations against the Respondent with regard to her acts of ill treatment. The said letter is dated 04.08.2005. In the reply which has been sent by the Committee of the Masjid, it is clearly mentioned therein at exhibit 23 that the Respondent and her family were not prepared to sold the problem through the Jamat.

The next witness examined is Pw.2, who has stated in his affidavit that he is a long time friend of the Appellant. He has further stated at para 3 of his affidavit that he had found the Respondent ill treating the Appellant in front of his friends by using cheap and filthy language.

In the cross examination of the said witness, he has stated that the said incident occurred at a petrol pump. He has further stated that he was never informed that the Respondent had beaten up the Appellant. When a specific query was put as to what he meant by saying that the Respondent was using cheap and filthy language, he has stated that the Respondent was shouting at the Appellant in front of his friends and other people around near the petrol pump.

The next witness examined is Pw.3, who is the uncle of the Appellant. He has stated that the Respondent left the Appellant in the month of May 2005 and had refused to come back even by the sincere efforts made by the Appellant. He has further stated that there used to be fights between the Appellant and the Respondent and he used to make them understand that the mother of the Appellant is suffering from blood pressure.

The Respondents in their defence have examined Dw.1, who is the Respondent herein. She has confined her affidavit to contend that it was the Appellant who wanted to reside separately and for that purpose, he wanted her and her family members to supply household appliances for said premises. She has further stated that the Appellant is a businessman and is running a shop in Margao.

In the cross examination, she has stated that she has not filed any legal complaint against the Appellant for dowry harassment.

The next witness examined is Dw.2, Najma Shaikh, who is the mother of the Respondent. She has denied the fact that the Respondent had ill treated the Appellant.

In the cross examination, she has admitted that just before their marriage, the Appellant was operated of the right knee and that she had gone to see him. She has further stated that after the marriage, the Appellant was also operated at Mangalore for the right knee.

The next witness examined is Dw.3, Shahid Shaikh, who is the member of the Norani Masjid, situated at Vasco da Gama, who has stated that the Respondent was ready for a settlement to go to her husband''s house but she later rejected the same as the Appellant said that he would take her as a servant.

Considering the said evidence on record, I find that the evidence of the Appellant discloses that the incidents which have been specified by the Appellant which amounts to ill treatment have been duly established by corroborative evidence of Aw.2. Taking note of the fact that there was no serious challenge to the occurrence of such incidents in the cross examination of Pw.2, I find that the learned Trial Judge was not justified to come to the conclusion that the incidents which the Appellant claimed to have occurred during the marriage, have not been established. Taking note of the fact the learned Counsel appearing for the Respondent otherwise does not dispute the fact that in case such incidents are established they would amount to ill treatment, I find that the learned Trial Judge was not justified to come to the conclusion that the Appellant has failed to establish the grounds of divorce under Article 4(4) of the Law of Divorce. The evidence of Dw.3, examined by the Appellant, would have to be discarded in view of the reply of the Masjid Committee, exhibit 23, which clearly discloses that the Respondent and her family were not prepared to arrive at a settlement through the Jamat. Apart from that, the evidence of Dw.2 is also not material to rebut the evidence of the Appellant inasmuch as the mother of the Respondent was admittedly not living with the Respondent at the conjugal domicile. Considering the evidence of Dw.1, which only mentions the fact that the Appellant was asking for some household items for the new residence which, according to her, he wanted to rent or purchase, I find that the incidents which have been enumerated by the Appellant have not been seriously disputed.

Considering the facts and circumstances of the case, I find that the learned Judge was not justified to come to the conclusion that the fact of ill treatment has not been established. Insulting the husband in the presence of his friends at a public place would definitely be an act of humiliation which can also be considered to be an incident of ill treatment to be read in conjunction with the other incident which have been enumerated by the Appellant in the plaint and the deposition before the Court. On appreciating the overall evidence on record, I find that the Appellant has made out a ground for granting a divorce under Article 4(4) of the Law of Divorce. The learned Trial Judge was not justified to dismiss the suit filed by the Appellant for divorce. Hence, the point for determination is answered accordingly. In view of the above, I pass the following :

ORDER

(I) The impugned Judgment and dated Decree 16.40.2007 is quashed and set aside.

(II) The suit filed by the Appellant for divorce is decreed under Article 4(4) of the Law of Divorce as applicable.

(III) The Registrar of Marriage is directed to cancel the registration no. 599/2004 dated 02.01.2005, in accordance with law.