Syed Ziauddin alias Nawab vs Parveez Shahana

Honourable Mr. Justice V. Madhava Rao

In these two Second Appeals the parties are common. S.A. No. 909 of 1978 is filed against the judgment and decree of the learned Additional Chief Judge-cum-Special Judge for S.P.E. cases, City Civil Court, Hyderabad in A.S. No. 173 of 1977 dissolving the marriage between Parveez Shahana and Syed Ziauddin alias Nawab and setting aside the judgment and decree of the 3rd Assistant Judge. City Civil Court, Hyderabad, in O.S. No. 1405 of 1972. It can be noted that the appellant Syed Ziauddin filed O. S. No. 160 of 1975 in the District Munsif''s Court, Khammam for restitution of conjugal rights. The said suit was transferred by an order of the High Court for being tried along with O.S. No. 1405 of 1972 which was filed by Parveez Shahana, the respondent herein, seeking dissolution of the marriage on the ground that the marriage is vitiated by fraud and non-fulfillment of essential conditions forming the basis of the conduct of the ''Nikha'' Therefore, both the suits were tried together and disposed of by a common judgment, The learned 3rd Assistant Judge, City Civil Court, decreed the suit O.S. No. 160 of 1975 filed by the husband and dismissed the suit O.S. No. 1405 of 1972 filed by the wife Parveez Shahana for dissolution of the marriage. Against the said judgment, both the parties preferred appeals separately to the Additional Chief Judge, City Civil Court. The learned Additional Chief Judge heard both the appeals and disposed them of by a common judgment. Both the appeals were allowed. In the result, C.S. No. 1405 of 1972 filed for dissolution of the marriage was decreed and O.S. No. 160 of 1975 filed for restitution of conjugal rights was dismissed. The husband Syed Ziauddin filed the present two second appeals against the common judgment of the learned Additional Chief Judge, City Civil Court. At the time of arguments, both the learned counsel submitted that the arguments are common in both the appeals and so S.A. No. 132 of 1979 might be directed to be posted along with S.A. No. 909 of 1978. Both the learned counsel argued at length. It was discovered that the other appeal (S.A. 132 of 1979) was not yet admitted. Hence it was directed to be posted for admission before the concerned judge. My learned brother Kuppuswami, J. admitted the same and directed it to be posted along with S.A. No. 909 of 78. In S.A. No. 909 of 1978 the following substantial questions of Law were framed : 1. Whether the filing of the complaint on the basis of the allegations made in the plaint could be treated as cruelty ?

Whether it was open to the Courts below to permit the amendment of the plaint by adding the ground of cruelty for dissolution of the marriage when the relief was initially rested on the ground of fraud ?

Whether the appellate Court erred in receiving additional document though there was no compliance of Order 41 rule 27 C.P.C ?

The facts in both these appeals are linked up together. There are no substantial questions of law framed in S.A. 132 of 1979, The learned counsel for the appellant argued on the above three points.

To appreciate the points raised by the learned counsel, it is necessary to note a few facts. The respondent Parveez Shahana is a graduate in science from the Raja Bahadur Venkat Rama Reddy College, Narayanguda, Hyderabad, having passed in January 1970. She was eager to obtain admission in any medical college to become a doctor. Her father is a Superintendent in Board of Revenue (Excise), Hyderabad and does not have means and resources to educate her in medicine outside the city of Hyderabad, bearing Boarding and Lodging expenses of the respondent. As the respondent had not secured higher percentage of marks, it was not possible for her to secure admission in any medical college at Hyderabad. Therefore, her only hope was to secure admission in the Kakatiya Medical College, Warangal for which a huge amount of Rs. 8,000/ and odd was required to be deposited as capitation fees. That apart, she has to spend at the rate of Rs. 200/- per month towards boarding and lodging. The father of the appellant is an old acquaintance of the father of the respondent and a close relative. The appellant''s elder brother was married on 21-6-1970. On that occasion, according to the respondent, the appellant saw her and liked her. So, his father approached her father and proposed to him to meet all the expenses for the respondent''s medical education in Kakativa Medical College, Warangal and requested him to marry the respondent to the appellant. In the beginning the respondent and her father were not prepared to agree to the said proposal as the appellant was not properly educated and is not equal in status to the respondent. But on the persistent requests of the appellant''s father, they agreed to the above proposal. But, according to the appellant herein, the father of the respondent approached his father and offered to give the respondent in marriage to the appellant with an idea of getting her education. The respondent''s case is that her father agreed to give her in marriage to the appellant on certain conditions viz., that the betrothal ceremony of the appellant and the respondent might be performed, that the appellant and his father should deposit a sum of Rs. 8,070/- and also Rs. 110/- and capitation fees in the Warangal Medical College for securing admission of the respondent in the integrated course of M.B.B.S., and should also meet all expenses for her stay and study in the said college hostel at Warangal till the completion of her graduation in medicine, that after her admission in M.B.B.S., course, the Nikha ceremony would be performed, that after the Nikha, a house worth atleast Rs. 25,000/- which may fetch an approximate rent of Rs 200/- per month shall be purchased in the name of the respondent to secure her studies till the completion of the said course and that the Nuptials ceremony known as ''Vidayee'' or Rukshati to be performed only after the completion of the medical course by the respondent. As against this contention the contention of the appellant is that there were to such conditions at all for the marriage and that he himself voluntarily deposited the capitation fees in the Warangal Medical College as be wanted that the respondent should study medicine. The betrothal ceremony between the respondent and the appellant took place on 4-9-1970. He deposited Rs. 8070/- and Rs. 110/- in the Warangal Medical College on or about 13-5-1971 and the Nikha was performed CD 11-6-1971 at Hyderabad. According to the respondent no ''Vidai'' or ''Ruksati'' was performed as originally agreed, but according to the appellant ''Vidai'' or Ruksati was also performed and the respondent came and lived with him for a few days at Hyderabad and also for some months at Khammam. The respondent appeared for the entrance examination for the seat in Medical College at Warangal, but she was not successful. Her name was included in the waiting list as Serial No. 2 in the first year course of M.B. B.S. As she could not secure the necessary marks, as stated above, her name was included in the waiting lists. The appellant withdrew the amount deposited by him on 4-9-1971. While the matters stood thus, the respondent received a telegram from the Warangal Medical College, asking her to inform her willingness for her admission in the second year course by re-depositing the capitation fees. In reply to this telegram, the respondent sect a telegram to the Principal, Warangal Medical College, expressing her willingness to join the course. The respondent''s mother went to Khammam on 18-4-1972 and personally requested the appellant herein and his father to deposit the capitation fees so as to enable the respondent to join the medical course. Subsequently, the respondent''s father sent telegram also to the appellant and his father requesting them to pay the said capitation fees But they did not deposit the capitation fees. The respondent''s contention is that the appellant and his father were not having the idea to educate her in medicine and that they played fraud on her to obtain her consent for the marriage and therefore the contract of marriage between her and the appellant is vitiated by fraud and that the marriage is void. On the other hand the contention of the appellant is that the marriage is valid. In so far as the first point is concerned, as stated above, it reads ; Whether the filing of the complaint on the basis of the allegations made in the plaint could be treated as cruelty?.

The second point reads as under:

Whether it was open to the Courts below to permit the amendment of the plaint by adding the ground of cruelty for dissolution of the marriage when the relief was initially rested on the ground of fraud?

First I will deal with the 2nd point.

The learned counsel for the appellant contended that at the appellate stage, the amendment ought not to have been allowed, only the ground of fraud was pleaded in the trial court, but mental cruelty was not pleaded. By the amendment, the wife, the respondent, wanted to plead cruelty for the purpose of dissolution of the marriage. This is entirely a new ground which could not be permitted by the appellate court. This ground was available to her when the suit was pending as she knew about the criminal complaint filed by the appellant and his father, but she had not chosen to amend the pleadings in the trial court. Hence, the appellate court ought not to have allowed her to amend her pleadings.

Mr. C.P. Sarathy, the learned counsel for the respondent on the other hand, contended that it was open to the appellate court to allow to amend the pleadings even at the appellate stage under Or. 6 rule 17 C.P.C. He also contended that allowing the parties to amend their pleadings at the appellate stage cannot constitute a substantial question of law that can be raised in the second appeal. That apart, the suit was filed for dissolution of marriage. The amendment was sought to be introduced in the pleadings. This aspect was considered by the appellate court and the appellate court has given cogent reasons for allowing the amendment of the pleadings by the wife. I.A. No. 290 of 1978 was filed to amend the written statement. I.A.No. 292 of 1978 in A.S. No. 193 of 1977 is a petition filed to amend the plaint in O.S.No. 1405 of 1972. The learned additional Chief Judge dealt with this point in paragraph 21 of his judgment and held;

The law is well settled that party cannot be dented to advance any additional grounds in support of his case merely on the ground of delay, unless prejudice is caused to other side, to show that there is a cruelty, the appellant relies on three allegations. The first is that the respondent deposited the money in her name, and so the money had become her money and that the respondent withdrew that money without her consent, The second is that the respondent failed to purchase the house as undertaken. The third is that the respondent filed criminal case''s. The first and the 2nd allegations are already there in the pleading. So the facts constituting these two allegations are already there, though it is not specifically stated in the pleading that these allegations amount to cruelty. Regarding the third allegation, of course there is no mention in the pleading. But it is admitted that the respondent filed criminal cases as alleged. The documents now filed to substantiate are certified copies or true copies served on the appellant, They are all petitions and complaints of the respondent in the courts. Admittedly, these criminal proceedings took place subsequent to the filing of the suits. So, the appellant was not in a position to advance this third allegation in the pleading. So, by advancing these three allegations and advancing any fact which are not known to the respondent. The facts are already there known to both sides. As it is not specifically pleaded that these facts disclose the cruelty, the appellant wants permission to include the grounds of cruelty as additional ground for dissolution of marriage. As already pointed out, the facts are already pleaded and the facts are known to both sides. So, there is no attempt to bring any new facts.

It was sought to be argued before the appellate court that if permission is granted to add this additional ground of cruelty, the nature of the suit would change and that it would be permitting the respondent herein to fill up the gaps or to remove the lacuna and that the amendment of the pleadings could not be allowed to fill up gaps or to remove lacuna. The learned Judge referred to various facts and held that the said argument could not be acceded to and ultimately permitted the amendment, This is within the discretion of the appellate court. This is not a question of law, much less a substantial question of law.

The learned counsel for the respondent referred to the decision in Nair Service Society Ltd. Vs. Rev. Father K.C. Alexander and Others, for the proposition that the appeal is a continuation of a suit and the amendment could be permitted in the appeal also. He also relied upon the decision in Saikharchand Vs. DJP. Karini Sabha AIR 1974 SC 178 where it was held that the subsequent change of events can be taken into consideration to do complete justice between the parties. Therefore, I am of the opinion that the second point cannot be treated as a substantial question of law and I see no force in this point.

The third point is whether the appellate Court erred in receiving additional documents even though there was no compliance with Or. 41 rule 27 C.P.C Again, it is to be pointed out that the appellate court was careful enough in first dealing with the petitions filed to receive additional documents in the appellate court. A reference has been made to the documents by the appellate court. The learned judge was of view that the respondent must be permitted to file the documents which are only copies of the petitions and complaint filed by the appellant in Criminal courts.

The learned counsel for the appellant argued that the provisions of Or. 41 rule 27 have not been complied with. Or. 41 rule 27 reads as under:

27 (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if--

(a) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

(b) the party seeking to adduce additional evidence satisfies the Appellate Court that such evidence not withstanding the exercise of due diligence, was not within his knowledge or could not be produced by him at or before the time when the decree under appeal was passed or,

(c) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause.

the appellate court may allow such evidence or document to be produced, or witness to be examined.

(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.

I find from the judgment of the appellate Court that it has framed a point and also given reasons for admitting the documents. When the lower Court has exercised its discretion and permitted the documents to be adduced in evidence, in this Second Appeal that discretion cannot be interfered with. Moreover, nothing is pointed out as to how the admission of the documents is a substantial question of law so that the High Court can interfere within Second Appeal. However the learned counsel for the appellant contends that there was no compliance with the provisions of Or. 41 Rule 27 CPC--I have already pointed out that the lower appellate Court has applied its mind and given reasons for admitting the documents. It is also stated that those documents came into existence after the tiling of the suit. The Criminal complaint was filed after the institution of the suit. After those proceedings were over, certified copies were obtained and filed in the appellate Court. It is to be noted that first the petition was filed for amending the pleadings and certain documents were filed in support of the pleading, which were to be incorporated after granting permission. There is a link between the amendment of the pleadings and the documents submitted. Therefore, the learned judge took up the petitions filed for the amendment of the pleadings as well as the petition for admitting additional evidence and disposed of them before going into the merits of the case. The learned judge, as stated above, has recorded reasons for doing so. Thus, there is compliance with the provisions of sub-rule (2) Or 41 of rule 27 C. P. C.

Now remains the first point which is as under :

Whether the filing of the complaint on the basis of the allegations made in the plaint could be treated as cruelty?

The main argument advanced by the learned counsel for the appellant is that the complaint was file on the basis of some allegations made in the plaint as well as the written statement filed by the respondent. The appellate court has discussed about this point in paragraph 37 of its judgment. There is no dispute that the appellant filed a criminal case in Khammam court. It referred to Exs. A-30, to A-33, Ex. A-30 is the certified copy of the complaint in C. C. No. 118 of 1972 filed by the appellant against the respondent, her parents and her maternal uncle under Sec. 415 read with Sec. 34 I. P. C. Ex.A-31 is the certified copy of the complaint in C.C. No. 40 of 1973 filed by the appellant under Sec. 499 I. P. C. contending that the respondent made defamatory remarks in her written statement filed in the suit for restitution of conjugal rights. The third document. Ex. A-32 is the true copy of the petition filed by the appellant in C.C. No. 40 of 1973 for the personal attendance of the respondent herein in the court. The 4th document (Ex. A-33) is also a copy of the order of Sessions Judge, Khammam in C. M. P. No. 61 of 1973 filed by the appellant for transfer of G. C. No. 40/73 from the Court of the First Class Magistrate, Khammam to the file of any other Court. The learned Judge observed that there is no dispute with regard to these documents, and so no further evidence is required to prove these documents. After going through these documents, the learned judge held that the ground of cruelty is proved. He referred to the decision in Abbas Ali vs. Babla AIR 1952 Allahabad 145 wherein it was held that the act of bringing a criminal complaint in a court against a wife and dragging her to court as an accused can be considered as a circumstance constituting legal cruelty under Sec. 2(8) (a) of the Dissolution of Muslim Marriage Act irrespective of the nature of the criminal complaint. He also referred to various authorities. This is essentially a finding of fact given by the learned Judge based on the material placed before him. The learned counsel for the appellant, however, contended that the ingredients of Sec. 2 (8) (a) which would constitute cruelty are not established in this case. Sec. 2 (8) (a) of the Act reads as under:--

2 (viii) that the husband treats her with cruelty that is to say,--

(a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or

It is not in dispute that assault is not involved in this case. It is only the second part viz. "makes her lite mirerable by cruelty of conduct even if such conduct does not amount to physical ill-treatment" has to be considered. The learned counsel argued that "habitually assaults her or makes her life miserable by cruelty means the word "habitually" not only governs assault but also the words "makes her life miserable by cruelty of conduct." At the out set it can be seen that the first part "habitually assaults" is an independent part. The second part, which reads "makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill, treatment" depends upon the circumstances of each case and no bard and fast rule can be laid down.

The learned counsel for the respondent referred to paragraphs 13 and 14 of the decision in Itwari Vs. Smt. Asghari and Others, where in it was laid down:

(13) what the court will regard as cruel conduct depends upon the prevailing social conditions Not so very long ago in England a husband could inflict coporal chastisement on the wife without causing comment. Principles governing legal cruelty are well established and it includes any conduct of such a character as to have caused danger to life, limb or health (bodily or mental) or as to give a reasonable apprehension of such a danger. Raydyn on Divorce 5th Edition P. 80

But in determining what constitutes cruelty, regard must be had to the circumstances of each particular case, keeping always in view the physical and mental condition of the parties and their character and social status ibid P. 80 In deciding what constitutes cruelty, the Courts have always taken into consideration the prevailing Social conditions, and the same test will apply in a case where the parties are Mohammadans. Muslim society has never remained static and to contend otherwise is to ignore the record of achievements of Muslim civilisation and the rich development of Mohammadan jurisprudence in different countries. Muslim jurisprudence has always taken into account charges in social conditions in administering Mohammadan Law.

Necessity and the wants of social life are the two all-important guiding principles recognised by Mohammadan jurisprudence in conformity to which laws should be applied to actual cases, subject only to this reservation that rules, which are covered by a clear text of the Quran or a precept of indisputable authority, or have been settled by agreement among the learned, must be enforced as we find them. It seems to me beyond question that, so long as this condition is borne in mind, the Court in administering Mohammadan Law is entitled to take into account the circumstances of actual life and the change in the people''s habits, and modes of living: Mohammedan Jurisprudence by Sri Abdul Rahim, Tagore Law Lecture-1908 P. 43.

(14) The most convincing proof of the impact of social changes on Muslim law is the passing of the Dissolution of Muslim Marriage Act 1939 by which the legislature enabled a Muslim wife to sue for the dissolution of her marriage on a number of grounds which were previously not available. One of them is the failure of the husband who has more wives than one to treat ail of them equitably in accordance with the injunctions of the Quran.

It is but a short step from the principle to ask a husband who has taken it into his head to have a second wife during the subsistence of the first marriage to explain the reasons for this conduct and in the absence of a convincing explanation, to conclude that there is little likelihood of the first wife receiving equitable treatment from him.

By this Act the legislature has made a distinct endeavour to ameliorate the lot of the wife and we (the Courts) must apply the law in consonance with the spirit of the legislature.

Sinha J. In Mt. Sofia Begum vs. Zaheer Hasan AIR 1947, All. 16.

I respectfully agree and would like to add that in considering the question of cruelty in any particular case, the Court cannot ignore the prevailing social conditions, the circumstances of actual lift and the change in the people''s habits and modes of living.

It has to be observed that in the present case the appellate Court applied its mind, discussed the matter elaborately and found that cruelty was established. This Court will not interfere with a finding of fact.

The learned counsel for the appellant argued that when a complaint is filed on the basis of a statement made in the plaint or in the written statement of the wife, can it be treated as cruelty. Whether cruel treatment was given to the wife or not is a question of fact. The conduct of the husband also has to be taken into consideration. If the husband files a criminal complaint on the basis of some allegation made in the plaint or in the written statement and the conduct even subsequent to the filing of the plaint is such that it constitutes cruelty, the question whether the complaint made on the basis of the allegation made in the plaint would constitute cruelty or not becomes otiose. Over all conduct of the husband has to be taken into consideration. The learned Sessions Judge, Khammam, referred to this aspect of the matter in a transfer petition (Cr.M.P.No. 61 of 1973). The learned session judge in his order dt. 15th September 1963 pointed out:--

In C.C. No. 118/72 the present respondent could not be secured so he filed the present complaint C. C. 40/73 to secure her presence at Khammam, but unfortunately the personal attendance is dispensed with. The petitioner is motivated to harass the respondent. So he has moved the present petition. The respondent is a pardanisheen lady aged 20 years residing at Hyderabad. It is not only safe for her to go to Khammam, but it is a matter of expenditure also. The complaint petition was adjourned from 2-5-1973 to 19-6-1973 and again to 9-7-1973 and in the meanwhile the petitioner to harass the respondent devised this way of filing the transfer petition.

XX XX XX

The learned respondent''s counsel during the arguments has contended that the present petition is nothing but the spirit of vindictiveness on the part of the petitioner. For some reasons the respondent does not want to join the petitioner and she resides with her parents in Hyderabad. To drag her to Khammam a suit for restitution of conjugal rights is filed. But when she filed a suit for divorce against the petitioner in Hyderabad, as a counter-blast, be filed the present C.C. 40/73 u/s 500 I.P.C. on some frivolous ground. So his main intention is to harass the respondent. But unfortunately the court dispensed with the personal attendance of the respondent and allowed the special vakalat filed by the advocate.

In paragraph 12 of the order, the learned Sessions Judge remarked as under:

I am convinced that this petition is filed only with the spirit of vindictiveness and there is no reasonable ground for apprehensions in the mind of the petitioner. Hence the petition is dismissed and the Magistrate is directed to proceed with the trial.

I have already noted that a criminal complaint was filed by the appellant to drag the respondent to courts at Khammam. Keeping in view all these facts, the lower appellate court has come to the conclusion that cruelty is established. Sitting in Second Appeal, I cannot interfere with a finding of fact.

Therefore, I am of the view that this will not constitute a substantial question of law to be considered, and is purely a question of fact, which cannot be interfered with in Second Appeal.

The learned counsel, even though no substantial question of law was framed, sought to argue that interpretation of a document is a question of law. It is with regard to the question whether nuptial ceremony was performed or not, the trial court was of the view that nuptial ceremony was performed, but the appellate Court was of the opinion that the nuptial ceremony was not performed. This cannot be said to be a question of law and is essentially a question of fact. This question of fact also cannot be gone into in Second Appeal. In the result, the findings arrived at by the lower Court has become final. Both the second Appeals are dismissed, But in the circumstances, the parties will bear their own costs.