Md. Nazimuddin vs Mustt. Monowara Begum

I.A. Ansari, J.—This revision is directed against the order, dated 28.6.1994, passed by learned Judicial Magistrate. 1st Class, Nagaon, in M.R. Case No. 241/91, u/s 3(1) of the Muslim Women''s Protection of Rights on Divorce Act, 1986, hereinafter referred to as "the Act of 1986" read with section 125 Cr.PC.

The facts giving rise to this revision may, in brief, be stated as follows : The O.P. filed a petition u/s 3(1) of the said Act claiming an amount of Rs. 15,000 as Meher (Dower) from the 1st party along with maintenance allowance for the period of Iddat amounting to Rs. 1,660, recovery of Dowry articles valued at Rs. 1,250 and maintenance allowance for her minor daughter @ Rs. 300 per month, the case of the 1st party being, briefly stated, thus : 1st party was legally married wife of the Second Party. The Second Party dissolved the marriage by giving her ''talaque'' and drove her out of her matrimonial home along with her said minor daughter. The meher was fixed at the time of marriage at Rs. 15,000 and dowry articles worth Rs. 1,250 were given in her marriage. Though the 2nd party has pronounced ''talaque'', he has not made payment of the Meher ''amount nor has he made payment for the value of the dowry articles received by him. The 2nd Party has also not given any maintenance to their said minor daughter.

The Second Party contested the proceeding contending, inter alia, that there was no marriage between the parties and hence, question of desolving the marriage by pronouncement of''talaque'' did not arise. Notwithstanding this categorical denial of marriage, Second Party''s case, eventually, projected was, in brief, thus, 1st Party and her father, late Nazar Ali had concealing the fact, at the time of marriage that the 1st Party was three months'' pregnant on the night of the marriage itself. On the discovery of this fact. 1st Party was sent to her paternal house and she got herself aborted. Thereafter, 1st Party refused to live with 2nd Party and started quarreling with him. 1st Party was allowed to go to her paternal house on her own request and since then, she has not come back to 2nd party''s house. The 1st Party is not entitled to payment of any meher, maintenance allowance for iddat period, recovery of value of the dowry articles and/or maintenance allowance for her said minor daughter.

Both sides adduced evidence. At the conclusion of the proceeding, learned Magistrate passed the impugned order directing the 2nd party to pay Rs. 15,000 as Meher to the 1st Party and also maintenance @ Rs. 500 per month for the period of Iddat. Learned Magistrate further directed that the 2nd Party shall pay to the 1st Party Rs. 1,250 as value of the dowry articles and that the said minor daughter of the parties was entitled to receive from the 2nd Party Rs. 150 per month as maintenance allowance with effect from the date of filing of the petition, in question, till she attains majority. The Second party was directed to pay the amounts aforementioned accordingly.

5.1 have carefully perused the record including the impugned order. I have heard Mr. D.P. Chaliha, learned senior counsel for the petitioner. None has appeared on behalf of the Opposite Party.

It is trite that a revisional Court shall not, ordinarily, re-appreciate the evidence on record unless findings suffer from perversity or based on no evidence on record and even if the revisional Court were to re-appreciate the evidence, it shall not substitute its own views in place of the views of the trial Court if, on the basis of the evidence on record, two equally different views are possible.

In the case at hand, Mr. D.P. Chaliha has taken me through the impugned order and also the evidence on record.

On a careful perusal of the evidence on record, it transpires that notwithstanding the fact that the Second Party disputed the factum of marriage, there is not only ample evidence on record regarding the marriage between the parties, but that there is also admission of the Second Party himself to the effect that the 1st Party is his wife.

Similarly, on the question of ''talaque'', though the 2nd party disputed that he had given talaque, his own evidence shows, as correctly pointed out by the learned Magistrate, that he admits to have given talaque to the 1st Party inasmuch as he himself challenged that the talaquenama produced by the 1st Party was not the real one, but he, for reasons cogently assigned by the learned Magistrate, failed to prove the same.

As regards to the Meher, the 1st Parry and her witnesses have completely in tune with each other, deposed that meher fixed was Rs. 15,000 and the same has remained entirely unpaid. The Second Party, however, contended, in his own evidence, that the Meher was fixed at Rs. 500 and out of this amount, Rs. 300 was given in cash at the time of marriage. The learned Magistrate, however, came to opine that the evidence adduced by the 1st Party was completely consistent with the plea of the meher having been fixed at Rs. 15,000, whereas the evidence adduced in this regard by the Second Party is full of contradictions. On a careful scrutiny of the evidence on record, I do not find any reason to disturb this finding.

Having found that the 1st Party is legally wedded wife of the Second Party, the Meher was fixed at Rs. 15,000 at the time of marriage and in view also of the fact that no payment was proved to have been made by the Second Party towards liquidating his debt of meher amount, the learned Magistrate was, I find, wholly justified in holding to the effect that the 2nd Party was liable to pay Rs. 15,000 for the amount of meher and also maintenance for the period of iddat @ 500 per month.

As far as the recovery of Rs. 1,250 for the dowry articles allegedly received by the Second Party is concerned, suffice it to mention here that the impugned order is completely silent as to how and why the learned Magistrate had reached the conclusion that dowry articles worth Rs. 1,250 had been received by the 2nd Party and/or that the 2nd Party was liable to pay to the 1st Party Rs. 1,250 for the alleged dowry articles. To the extent, therefore, the impugned order directs recovery of Rs. 1,250 from the Second Party, this finding cannot be sustained.

As far as maintenance given to the minor daughter of the parties is concerned, the learned Magistrate has held that the girl, in question, is daughter of the parties to the proceeding and relying upon the decision of this Court, reported in Mrs. Rupsan Begum Vs. Md. Abdus Sattar, the learned Magistrate granted maintenance to the said minor daughter of the parties as stated hereinabove. I see no reason to interfere with this finding reached, and/or direction given, by the leaned Magistrate.

In the result and for the reasons discussed above, this revision party succeeds and while maintaining the impugned order, the extent to which the impugned order entitle the 1st Party to recover from the 2nd Party the said amount of Rs. 1,250 the same is set aside.

No order as to casts.

With the above directions, this revision shall stand disposed of.

Send forthwith a copy of this judgment and order to the learned Court below.