JUDGMENT
A.K. Prasad, J.
1. This appeal, under Section 19(1) of the Family Courts Act, 1984, is by the plaintiff (Amna Khatoon) against the judgment and decree passed by the Principal Judge, Family Court, Dhanbad, in Title (Matrimonial) Suit No. 40 of 1994, dismissing her suit for dissolution of marriage under the Dissolution of Muslim Marriage Act, 1939 (‘the Act’, for short).
2. The essential facts giving rise to this appeal are thus :
It is admitted fact that the plaintiff (Amna Khatoon) and the defendant (Md. Kashim Ansari) Were married on 6.3.1993, according to the Mahomedan rites at village Asanbani, P.S. Govindpur, within district Dhanbad, at the residence of the plaintiff. The defendant is the resident of village Sam-hari, P.S. Barwadda, within district Dhanbad. It emerges from the record that the parents of the plaintiff are blind and she has two married sisters and no brother. Further, both the parties have admitted in their evidence that nochild has been born to them out of the wed-lock. At the time of the marriage, the plain tiff was a teacher in Asanbani Middle School, while the defendant was a driver in M/s. Bharat Coking Coal Limited (BCCL) at Dhanbad.
3. The plaintiff brought the suit for dissolution of the marriage with the allegations, inter alia, that at the time of the marriage, the defendant concealed the fact that already he had two wives, who were living with him at village Samhari; that it was mutually agreed at the time of the marriage that the defendant would
live with the plaintiff at her parental home, but he broke the promise and occasionally lived with the plaintiff, while the plaintiff never visited the village home of the defendant/husband; that the defendant, whenever he came to the house of the plaintiff, ill-treated and habitually assaulted her and made her life miserable by cruelty of conduct and he often pressurised her to convey the properties to him, which have been gifted to her by her father, but she did not oblige him. Further, she alleged that in the month of March, 1994, .one night the defendant took her to a lonely place far-off village Asanbani, misbehaved, abused and threatened her, and whenever the defendant visited the house of the plaintiff, he used to take away her movables forcibly and whenever she objected; he assaulted and threatened her- She further alleged that the defendant has association with women of evil repute and lives an infamous life. Hence, she prayed for dissolution of the marriage between the parties.
The defendant/husband resisted the suit by filing the written statement as well as supplementary written statement. His main defence is the denial that he had suppressed any fact from the plaintiff or her father at the time of the marriage or that there was an agreement between the parties that he would live with the plaintiff at her parental home. On the other hand, he has asserted that there was an understanding that after the marriage, the plaintiff would live with him at his home (Samhari) and would occasionally visit her parental home. He pleaded his ignorance that Daud Mian, his father-in-law, had conveyed his property to the plaintiff. He has asserted that occasionally he used to visit the parental home of the plaintiff, while most of the time, the plaintiff lived with him in his house at Samhari. He has denied that he had treated the plaintiff with cruelty or ever harassed her. Further, he has denied the allegation that he used to pressurise the plaintiff to transfer any landed property in his favour. He has
further denied that he ever removed her movables against her wishes. He has made counter allegation that she is a lady of bad character and has extra-marital relationship with infamous persons, which is against religion and at the behest of Pahlan Mian and Taiyab Ansari, her paramours, she has filed the present suit with false allegation.
On the above grounds, the defendant/husband prayed that the matrimonial suit be dismissed.
4. The- trial Court on the basis of the pleadings of the parties, on re-cast, framed the following issues for determination in the suit:
“I. Is the case filed by the petitioner maintainable ?
II. Has the petitioner any valid cause of action for this case ?
III. Has the respondent treated the petitioner with cruelty ?
IV. Is the petitioner entitled for dissolution of her marriage with the respondent by a decree of divorce ?
V. To what other relief or reliefs is the petitioner entitled to.?”
5. At the trial, the plaintiff examined as many as five witnesses in support of her case. They are : PW 1 (Amna Khatoon), the plaintiff herself, PW 2 (Pahlan Mian), the Sarpanch, PW 3 (Taiyab Ansari),’ brother-in-law of the plaintiff, PW 4 (II-liyas Ansari), son-in-law of PW 3 and PW 5 (Hafizuddin Ansari).
The defendant, on the other hand, also examined five witnesses, namely, DW1 (Khalil Ansari), DW 2 (Md. Kashim Ansari), the defendant himself, DW 3 (Kayamuddin Mian), the cousin of the defendant, DW 4 (Charku Mian), the cousin of the plaintiff, and DW 5 (Talib Mian), brother-in-law of the defendant.
No documentary evidence has been brought on record by the parties.
6. On consideration of the materials and evidence on record, the Court below held that the plaintiff has failed to prove by cogent evidence that the defendant had treated her with cruelty and decided
all the issues against her and ultimately, dismissed the suit.
Aggrieved by the impugned judgment, the plaintiff preferred this appeal.
7. Learned counsel for the appellant, while assailing the impugned judgment has urged that the plaintiff (PW 1) has alleged in her evidence that the defendant (DW 2) had fraudulently concealed the fact that he had two living spouses, which fact has not been controverted by the defendant in his evidence, although he had denied the allegation in the written statement and thus this allegation is established by the evidence on record and the learned Court below fell in error in not considering it as an act of cruelty; that the evidence of the plaintiff (PW 1), which was, in substance, corroborated by the testimony of PWs 2, 3, 4 and 5 that the defendant used to torture and assault her, ought to have been believed by the trial Court and, in the facts and circumstances of the case, the trial Court erred in holding that the allegation of cruelty was not established against the defendant. He further submitted that there is great disparity in the age of the parties; that there is strained relations between them and they are living separately and with hostility for over six years and the marriage between them has broken irretrievably and in such a situation, the plaintiff/wife is entitled to a decree for dissolution of the marriage under Section 2 of the Act.
Mr. A. Sahay, learned counsel for the respondent, on the other hand, has supported the impugned judgment. He pointed out that there is no eye-witness, other than the plaintiff, to support the allegation that the defendant/respondent had ever assaulted, harassed or tortured her; that the plaintiff has not whispered in her evidence that the defendant did not treat her equitably with his co-wives; that the plaintiff has brought no document on record to show that her father had gifted landed property to her, nor there is allegation that the defendant had disposed of her property or prevented her from exercising her legal rights over such property.
8. The following points are formulated for determination in the appeal:
I. Whether the respondent/husband treated the appellant/wife with cruelty within the meaning of the Act ?
II. Whether, in the facts and circumstances of the case, the marriage between the parties has broken irretrievably ?
III. To what relief(s) the plaintiff/appellant is entitled to ?
Point No. I:
9. This is an important, but controversial issue for adjudication in the proceeding. At the out-set, it may be mentioned that the factum whether the plaintiff ever lived with her husband/ defendant at matrimonial home is not of much relevance and/or material for determination of the point at issue. That apart, there is oath against oath on this aspect of the matter. It has to be examined whether the husband had treated her (the wife) with cruelty. A husband can be charged for treating his wife with cruelty, when he habitually assaults her or makes her life miserable by cruelty of conduct, which may not even amount to physical ill-treatment. It is true that the onus lies, in the man, on the plaintiff/ wife to prove that she has been treated with cruelty. One may now proceed to examine and analyse the evidence led by her in support of the charge. The plaintiff (PW 1) has testified to the effect in the chief-examination that for about 22 days the parties led a happy conjugal life, but thereafter there was snag in the relationship and the husband started to harass her in various ways. He even began to assault her and habitually used vile expressions towards her and he used to take away her movables such as radio-set, wrist watch, golden chain and cash forcibly, whenever he visited her paternal home. Recounting another instance of cruelty, she has stated in her chief-examination that during Ramzan once her husband took her away from her parental home on the pretext of purchasing garments for her and on the way he heaped filthy abuses on her and threatened that
if she did not regularly give money to him, he would cut her into pieces. She has further alleged that the husband pressurised her to transfer the landed property, gifted to her by her father, and to grab her wealth he always inflicted physical and mental torture to her. She has further clarified in her evidence that her father has gifted his house and landed property to her. The reason for the gift of the property by the father was because she was staying with her old blind parents and took care of them, while her other two married sisters were living at their respective matrimonial home. She has not been cross-examined by the defence on the allegations made by her against the husband, which have been indicated above, and mere suggestions were put to her, which she has denied. It is true that in the cross-examination, she fairly stated that she was the sole eyewitness to the cruelty perpetrated by the husband on her.
PW 2 (Pahlan Mian), the Sarpanch has testified to the effect that for sometime the relations between the parties were harmonious, whereafter differences started between them and for squeezing money and landed property, the husband had. assaulted her several times. PW 3, brother-in-law of the plaintiff and PW 4 (Illiyas Ansari) have also testified to this effect. PWs 2/3 and 4 have further stated that for greed he had married the plaintiff. PW 2 is a co-villager of the plaintiff, while PWs 3 and 4 are her relations and they are expected to know about the affairs of the family of the plaintiff. PW 5 (Hafizuddin Ansari), a resident of village Bhitia, has testified to the effect that there was a Panchayatee, convened by the plaintiff, in which she had disclosed that she was tired of her husband and she would no more visit her matrimonial home and would stay with her parents and that at point of time, her husband had tried in-vain to pressurise her to transfer the property, gifted to her by her father.
10. DW 1 (Khalil Ansari), DW 2 (Md. Kashim Ansari), the husband, DW 3
(Kayamuddin Mian), DW 4 (Charku Mian) and DW 5 (Talib Hussain) have testified to the effect that for a year and half, the parties led conjugal life together whereafter differences arose between them and now they are living separately. DW 2 has denied that he ever harassed or assaulted the plaintiff or relieved her of her movables forcibly.
It is true that Nikahnama has not been brought on record. But it is of no consequence, since the marriage between the parties is admitted. The evidence of the plaintiff which to some extent is corroborated by the testimony of PWs 2 to 5 (of whom PW 5 is an independent witness) clearly shows that the husband harassed and treated her with cruelty by assaulting her or using vile language towards her. It is true that no document of gift of landed property by the father to the plaintiff has been brought on record, but there is evidence of PW 3, a member of the family, that the plaintiff’s father had gifted the landed property to her. Further, under the Mahomedan law writing is not essential for validity of the gift either of movable or immovable property. It may be oral accompanied with delivery of possession. It is true that the plaintiff (PW 1) has simply alleged that the husband used to pressurise and threaten her to convey her gifted landed property to him. She has not alleged, nor there is evidence that the husband has disposed of her property or has prevented her exercising her rights over it. So, the mere pressure on her to transfer the landed property would not by itself constitute cruelty as defined in Section 2(viii)(d) of the Act. At the same time, such pressure exerted on her by the husband can be construed as a motive for treating her with cruelty. The circumstance that the husband had two living spouses and taking of the plaintiff as the 3rd wife may be an occasion for the other co-wives to complain. At any rate, she could have exercised the option to repudiate the marriage before it had not been consummated. It is not the case of the plaintiff
that there was no consummation of her marriage with the husband.
The evidence of the plaintiff is clear, cogent and convincing that her husband assaulted and treated her with cruelty and had little or no affection for her and it is clear that he, by his conduct, showed that his habit was one of mat-treatment to his wife. It is not necessary that in all cases, the husband would habitually ill-treat his wife in presence of other persons. That apart, PW 5 has made candid statement in his evidence that in 1994, there was a Panchayat convened by the plaintiff, in which she had clearly stated that she Was fed-up with her husband and she had decided no more to visit her matrimonial home and would stay with her parents. This amply demonstrates that the husband has habitually ill-treated her and had made her life miserable by his cruel conduct.
11. DW 2 (Md. Kashim) the husband, has stated in his evidence that he desires to keep the plaintiff/wife with him with honour. His past conduct, as noticed above, of habitual ill-treatment, leads to the inference that there is no guarantee that in future, he would treat her with affection. Perhaps, this plea has been taken by him to defeat the suit.
12. In view of the discussions made above, it is held that the defendant/husband treated the plaintiff/wife with cruelty within the meaning of Section 2(viii)(a) of the Act.
This point is, thus, answered.
Point No. II:
13. This is an equally important question, which arises for consideration in the instant appeal. The suit for dissolution of the marriage has been brought by the wife, a little more after a year of the marriage. She has clearly stated in her evidence that there is no chance of leading a happy conjugal life with the husband and dissolution of the marriage is the only option left with her. There is evidence of PW 5 that in 1994, before the Panchayat she had expressed in frustra-
tion that she was fed-up with the cruel conduct of the husband and she no longer desired to go to her matrimonial home; rather she wanted to live with her parents. The evidence of the DWs is to the effect that the parties are living separately since about a year and half of the marriage and there is strained relations between them. The evidence on record suggests that, at least, there is disparity in the age of the parties, ranging between five to six years. There is strained relations between the parties and they are living separately, by now, for more than six and half years. The husband is so hostile to the wife that he ventured to make obnoxious allegation against the plaintiff/wife that she was having extra- marital relationship with Pahlan Mian (PW 2) and Taiyab Ansari (PW 3), her sister’s husband and some other persons. Thus the husband, though as a counter defence, has made character assassination of his wife, but he did not choose to whisper about it in his evidence. When an intolerable situation has been reached and partners are living with hostility for a considerable number of years, it is legitimate to draw an inference that the marriage has broken down in reality and law should recognise it and try to end the relationship. Islam concedes the grounds of dissolution of the marriage at the instance of the wife and the statute itself recognises it and preserves it as a saving provision under Section 2(ix) of the Act, when it enacted “any other ground which is recognised as valid for the dissolution of marriages under the Muslim Law”.
14. The instant case is not one in which there is some instances of quarrel, as often take place in a family. There is the well known incident in the case of Jameela, wife of Sabit Bin Kais, who hated herhusband although the husband was extremely fond of her. It is said that Jameela requested the Holy Prophet to get her husband to divorce her on her giving him her garden. Sabit Bin Kais was very ugly and Jameela, his wife, is
reported to have said “if I had no fear to God, I should have struck him on the face whenever he approached me”. Thereupon the Prophet asked Sabit Bin Kais to take back the garden and divorce Jameela. This illustration shows the recognition of the Prophet of the rights of a Muslim wife to ask for divorce or dissolution of marriage when it was shown that the parties could not live within the limits of God.
In 1986 (1) Cur CC 240 (1) (Pak) (SC), a Pakistan case is reported, wherein it is stated thus :
“In cases of dislike by the wife of her husband, Islam concedes the right to the wife in circumstances of extreme discord and where life becomes torture for both, on account of the fixed a version on the part of the spouses, to see dissolution of marriage on the ground of Khula. This right however, is not an absolute right by which the wife can herself dissolve the marriage but is a controlled right. The success of the right depends upon the Quazi’s reaching the conclusion that the spouses cannot live within the limits of God.”
15. In view of the discussions made above, it is manifest that the marriage between the parties has irretrievably broken down and on this score too, a wife is entitled to the dissolution of marriage, which is covered by the residuary ground as envisaged in Section 2(ix) of the Act, which runs thus :–
“2. ……
(ix) On any other ground which is recognised as valid for the dissolution of marriages under Muslim Law.”
In the aforesaid connection, reference may also be made to Mohammed Usman v. Sainaba Umma, AIR 1988 Ker 138.
For the findings recorded above, the plaintiff is entitled to a decree for dissolution of the marriage. This point is answered accordingly.
Point No. III:
16. In the result, this appeal is allowed on contest. The impugned judgment and decree passed by the Court below are set aside and the suit of the plaintiff for dissolution of the marriage is decreed.
However, in the circumstances of the case, there shall be no order as to costs.
17. Appeal allowed.
