JUDGMENT
1. The unsuccessful plaintiff filed the present appeal against the judgment and decree dated 24-4-1987 passed by the learned Second Additional Subordinate Judge, Warangal, in OS No.52 of 1983.
2. She filed the suit for recovery of Mehar amount and for return of jehaz articles to her, mentioning in the plaint inter alia that she was married to the defendant on 1-12-1972 at Hanamkonda and she gave birth to three sons and that her husband through a letter dated 7-1-1983 addressed to her father pronounced triple talaq dissolving the marriage and that later the defendant married another woman by name Azamath Sullhana and therefore, she was entitled to the deferred mehar amounting to Rs.5,000/- and two dinars of the value of Rs.10/- each with interest at 18% per annum and for the return of jehaz articles.
3. The defendant while resisting the suit pleaded that the letter dated 7-1-1983
was a forged document and that the marriage between the plaintiff and the defendant was subsisting and therefore, the plaintiff was not entitled to Metier amount. He further pleaded that on account of the conduct of the plaintiff who refused to lead conjugal Hie with him, he had to marry another woman by name Azmath Suhhana and his attempts to take back the plaintiff had not been fructified.
4. The trial Court framed the following issues at the time of settlement of issues:
(1) Whether the defendant addressed a letter dated 7-1-1983, to the plaintiff effecting a divorce and the marriage between the defendant and the plaintiff stands dissolved.
(2) Whether the plaintiff is entitled to claim the Mehar amount and interest thereon.
(3) Whether the plaintiff is entitled to have return of the jehaz articles, if so whether the list annexed to the plaint is correct and whether they are in the custody of the defendant.
(4) Whether there is no cause of action for the plaintiff.
(5) To what relief?
5. At the time of trial, two witnesses were examined on the side of the plaintiff and the documents Exs.Al to A4 were marked, besides marking Exs.C1 to C3 for the Court. Two witnesses were examined on the side of the defendant, but no documents were marked.
6. Upon considering the oral and documentary evidence adduced on either side, the trial Court dismissed the suit with costs. On issue Nos.1 and 4 it was held that the plaintiff had failed to prove that the defendant had addressed Ex.A3 letter in Ex.A4 envelope and that there was no cause
of action for the plaintiff to file the suit. On issues Nos.2 and 3, it was held by the Court below that the defendant should return the articles as mentioned in the list excluding certain hems and also the articles as mentioned in the ‘B’ schedule. Ultimately in view of the findings on issue Nos.l and 4, the suit was dismissed and that on issue Nos.2 and 3, the plaintiff was found to be entitled to the return of the articles as mentioned in the judgment.
7. The learned Counsel for the appellant has submitted that there has been ample evidence to prove the divorce between the parties and the Court below has committed an error in not appreciating the evidence on the point. The learned Counsel for the respondent, on the other hand, has submitted that Ex.A3 has not been proved by any acceptable evidence and there has been no cause of action for the plaintiff to file the suit and therefore, it is a case where the plaint ought to have been rejected at the inception.
8. The points that arise for my determination in this appeal are:
(1) Whether Ex.A3 letter dated 7-1-1983 is proved; and
(2) Whether there is valid divorce between the appellant and the respondent as claimed ?
Point No.1:
The oral evidence adduced on this point is that of the appellant herself as PW1 and her father as PW2. Ex.A3 letter is said to have been addressed by the respondent herein to his father-in-law i.e., PW2 in Ex.A4 envelope. Ex.A3 is in Urdu language and its translation copy has been made available to the Court. The entire case revolves around this document. The appellant who examined herself as PW1 deposed on oath that she could identify the signature of the defendant in the talaq
deed and it bore the signature of the defendant. It had been sought to be elicited in the cross-examination that there were no letters addressed to her or to her father by the defendant, perhaps, with the idea that PW1 could not validly identify the signature on Ex.A3. PW2, the father of the appellant deposed on oath that he received Ex.A3 letter in Ex.A4 envelope. He further stated that he could identify the hand-writing and the signature of the defendant and that Ex.A3 was in his (defendant) hand writing and was-signed by the defendant. PW2 in the cross-examination admitted that he had no other letters written by the defendant to him except Ex.A3. Basing on these admissions from PWs.1 and 2, the learned Counsel for the respondent contended that Ex.A3 had not been proved and the signature appearing thereon could not be held to be true. In support of his contention, the learned Counsel relied upon the judgment of the Apex Court in Rahim Khan v. Khwshid Ahmed, . The Apex Court in Para 39 of the judgment held thus:
“PW23 has not been spoken to his familiarity with the handwriting of the appellant, and the opinion evidence becomes relevant only if the condition laid down in Section 47 of the Evidence Act is first proved since it is hearsay.”
9. Before adverting to the question of law canvassed by the learned Counsel for the respondent it may be mentioned here that there is no dispute of the relationship between the appellant and the respondent inter se. The appellant lived with the respondent and gave birth to three sons through him. Given the relationship inter se between the appellant and the respondent, we have to appreciate the oral evidence of PW1 on the point of identification of the signature on Ex.A3. The disputed signature on Ex.A3 can be proved by so many ways. It need not necessarily be by means of the
opinion of an expert. The modes of proving the handwriting are thus: (1) By direct evidence; (2) By familiar evidence. (3) By the opinion of an expert; (4) By means of admissions made by the parties; (5) By circumstantial evidence; and (6) By comparison by Court. We are now concerned with the second category namely, the familiar evidence. On this as afore discussed there is evidence of PWs.1 and 2. The crucial question that has to be considered at this juncture is whether PWs.1 and 2 can validly claim that they are familiar with the handwriting and the signature of the respondent-defendant. Given the relationship between the parties inter se, in the first instance it can legitimately be considered, when PWs.1 and 2 claimed on oath that they are familiar with the signature of the defendant. The learned Counsel for the respondent is more emphatic in his contention based on the answers given by both the witnesses in the cross-examination that they have not received any letters from the respondent, and therefore, that takes away the familiar evidence. It is germane at this stage to refer the relevant provision in the Indian Evidence Act, which envisages the familiar evidence. Section 47 of the Indian Evidence Act reads as follows:
Opinion as to handwriting, when relevant:–When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact.
Explanation :–A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority
and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him.
What the section says is that the evidence of a person who is acquainted with the handwriting of the person by whom the disputed document was purported to be written or signed is a relevant fact. In the explanation appended to the section the word ‘acquaintance’ has been sought, to be elucidated. A person is said to be acquainted with the handwriting of another person when he has seen that person writing, or when he has received documents purporting to be written by that person. It is obvious that this explanation speaks of three modes namely, (1) Seeing the person writing the disputed document or (2) Knowledge by receiving the correspondence from the person who is said to have written the disputed documents, and (3) Habitual submission of documents purporting to be written by a person in the ordinary course of business. Now the second part and third part of it are not available, inasmuch as, both the witnesses have categorically deposed that they have not received any letters from the respondent. Insofar as the first part of the explanation is concerned, as afore discussed given the relationship between the parties inter se it can be said that they are familiar with the signature of the respondent. It is no doubt true PWs.1 and 2 did not speak in so many words that they had seen the respondent writing or signing on any documents. The witness need not state in the first instance as to how he has come to be acquainted with the signature or handwriting, since it is the duty of the opposite party to explore on cross-examination the sources of his knowledge. I am reinforced in my above view by the judgment of the Karnataka High Court in Shankerappa v. Sushilabhai, . The Apex Court in Kahim Khan’s case (supra), did not lay down
specifically that the witness, in the chief-examination itself should speak about the manner in which he/she became acquainted, as enumerated in the explanation. PWs.1 and 2 categorically deposed that they could identify the signature of the respondent as they were acquainted with the signature of the respondent. At times, the party calling the witness may elicit these details in the chief-examination itself by way of abundant caution. Omission to do so cannot be a ground for rejecting the statement of witnesses about their acquaintance of disputed signatures. When there is a positive statement from the witnesses that they have become acquainted with the signature, the statement could have been assailed by the adversary while questioning their capacity to identify. It is where the explanation appended to the Section 47 comes into a play. Merely because PW1 the wife has not received any letters from her husband, her capacity to identify the signature of her husband cannot be doubted. It has not been elicited further in the cross-examination that she has never seen the respondent writing or by some other mode to test the capacity of the witnesses of their knowledge. Under the circumstances and in view of the relationship between the parties, the Court cannot doubt the statement of the witness i.e. PW1 that she is acquainted with the signature of her husband and she can identify the same.
10. The other circumstances and probability factors are also be considered in this case. The appellant claims that her husband pronounced triple talaq and addressed a letter to her father under Ex.A3. It is not a happy affair for any wife to claim that she was given divorce by her husband. On the other hand, ordinarily a wife would be inclined to speak in favour of the subsistance of marital tie than severance. By such claim PW1 will not get any benefit except to the extent of return of the mehar amount which is a paltry
sum of Rs.5,000/- and the jehaz articles. Therefore, it appears to be extraordinary if any woman claims severance of the marital tie. When PW1 has gone to the extent of saying that she has been divorced, the intrinsic worth of the statement cannot be lost sight of by the Courts. This attendant circumstance will strengthen the claim of the appellant that Ex.AS contains the signature of the respondent. PW2 who is no other than the father-in-law of the respondent even if he has not received any letters from the respondent since the receipt of Ex.A3, in view of his relationship with the respondent his evidence about the familarity of the handwriting and the signature of the respondent cannot be easily brushed out. This has got to be tested with reference to the surrounding circumstances and the probability factor. It is a fair case where PWs.1 and 2 gain nothing by claiming that there has been severance of marital status between PW1 and the respondent. In that view of the matter, their evidence is to be appreciated and cannot be eschewed on the ground of interestedness. PW2 claims that he received Ex.A3 letter under Ex.A4 envelope. The Court below has not considered Ex.A4 envelope on the ground that the envelope has not been filed alongwith Ex.A3 letter and has been filed only on the date of PW1 giving evidence, forgetting for a moment that it has been the consistent stand of the plaintiff that the defendant addressed Ex.A3 letter to her father under an envelope. In that view of the matter, even if Ex.A4 document has been filed at a later stage, it does not loose any significance.
11. It is the case of the respondent that he contracted another marriage with one Azmaih Sitlthana and that was occasioned because of the appellant refusing to lead conjugal life with him. It is his further case that the appellant along with her three children left his house for Warangal without his knowledge and subsequently refused to join him. This
plea of the respondent clearly establishes the estrangement between the parties. This further probablises the theory of divorce by writing a letter by the respondent to PW2.
12. The appellant while trying to prove her case got Exs.C1 to C3 documents filed in this case. Ex.Cl is the summons dated 8-4-1983 sent by the Court to the respondent after the appellant filed the suit. Ex.C2 is the paper containing the handwriting of the respondent made in Court. Ex.C3 is the duplicate copy of the notice said to have been received by the respondent from the Commissioner after having signed on it. The respondent denied the signature on Ex.Cl, the Court summons. The fact that he received summons from the Court and had put in his appearance before the Court pursuant thereto and contested the suit by filing the written statement and adducing evidence cannot be lost sight of. The conduct of the respondent in having gone to the extent of denying his signature on the summons again at this juncture gains any amount of significance. If that is taken into consideration, the denial of the respondent of his signature on Ex.A3 becomes highly sceptical. These circumstances emerging from the evidence on record will probablise the version of the appellant, and would further strengthen her familiar evidence.
13. The Court below should have proceeded to compare the disputed signature on Ex.A3 vis-a-vis the admitted signature of the respondent on Ex.C2 and also the signature of the respondent available on the vakalat given by him to his Counsel and his written statement and should have considered the conduct of the respondent in having denied his signature on Ex.Cl. Such a comparison by the Court is envisaged by Section 73 of the Indian Evidence Act. While doing so, it cannot be said that the Court is playing the role of an expert. There is ample evidence available on record
which can aid the Court for such comparison. Now on a perusal of Ex.A3 putting it in juxta position with Ex.Cl, the signature of the respondent on the written statement filed by him and with reference to the other attendant circumstances as discussed by me supra, one can come to a clear conclusion that the signature bearing on all the three documents are identical. Added to it, the evidence of PW2 is that the document Ex.A3 is in the handwriting of the respondent. A glance at Ex.A3 shows that the entire document seems to have been written with one pen and with one ink. It does not also excite any suspicion. For the above reasons, I see no compelling reasons to disbelieve the testimony of PWs.1 and 2. Their oral testimony coupled with the attendant circumstances and the probabilities and also the conduct of the respondent in denying his signature even on the summons of the Court would amply prove Ex.A3. In that view of the matter, the Court below committed an error in proceeding only on the ground that there has been no subsequent correspondence between the parties and therefore Exs.A3 and A4 cannot be taken into consideration. For the above reasons, it is obvious that Ex.A3 letter has been sent under Ex.A4 envelope by the respondent and Ex.A3 contains the requisite triple talak.
Point No.2:
Ex.A3 clearly shows that the respondent pronounced triple talak. Ex.A3 has been addressed to PW2, the father of PWI. The requirements of a valid talak and the information in regard to the talaq to the wife are not very much germane for consideration since it is not a material issue to be considered in the suit. There is no plea in regard to the validity of the talak. The only contentious issue in the suit is as to whether Ex.A3 is true or not. Once Ex.A3 is proved it goes without saying that there has been a valid talaq and the consequential severance of the marital status between the parties inter se.
14. In view of the findings on both the points and as the lower Court held on issue Nos.2 and 3 in favour of the plaintiff, the suit is to be decreed.
15. In the result, the appeal is allowed and the judgment and decree of the Court below are hereby set aside. The suit is decreed and the plaintiff is entitled to the Mehar amount and return of the jehaz articles as held by the Court below on issue Nos.2 and 3 or the value three of with interest at 12% per annum from 7-1-1983. Under the circumstances, I direct both parties to bear their respective costs. The Court fee payable on the appeal shall be paid by the respondent.