Thassan Begum and Another vs Roshanara

Rakesh Tiwari, J.

Heard learned counsel for the parties and perused the record.

This Second Appeal has been preferred challenging the validity and correctness of the judgment and decree dated 11.12.2009 passed by the First Additional District and Sessions Judge, Kannauj in Civil Appeal No. 47 of 2004, Thassan Begum and others versus Roshan Ara confirming the judgment and decree dated 29.11.2004 passed by the Civil Judge (Senior Division), Kannuaj in Original Suit No. 34/70/2000, Roshan Ara versus Thassan Begum and others.

The plaintiffs appellants have sought relief of setting aside of the judgment and decree passed by by the Courts below in Civil Appeal No. 47 of 2004 as well as in Original Suit No. 34/70/2000 and that the suit of the plaintiffs appellant be allowed with costs. The judgments and decrees of the Courts below are challenged on the ground that the Courts below have erred in law in passing the judgment and decree without considering the material on record and that the suit as well as the appeal have been decided without proper framing of the issues. It is submitted that the Courts below have committed an error in law in disbelieving the divorce on 12.10.1999 said to have been given by the husband. It is also stated that the findings recorded by the Courts below are perverse and based on no evidence as well as are against the evidence on record, hence such findings based on surmises and conjectures are liable to be set aside. It is lastly urged that in Muslim Law it is not necessary that the divorce is given in writing, it can be oral and is completed when the husband of a Muslim lady gives Talaq repeatedly saying three times in continuance.

No other point has been argued by the learned counsel for the appellants.

The facts of the case are that defendant respondent filed a Civil Suit No. 463 of 1999, Smt. Roshan Ara versus Mohammad Shahid and others, which was dismissed by the Civil Judge (Senior Division), Farrukhabad allegedly without considering their objection filed before the Court. Thereafter, she filed another Suit No. 34/70/2000 Smt. Roshan Ara versus Thassan Begum and others for grant of succession certificate in the Court of Civil Judge (Senior Division), Kannuaj, which was partly allowed vide order dated 29.11.2004 allegedly without application of mind and without considering the facts of the case.

Aggrieved by the aforesaid judgment and decree dated 29.11.2004, the plaintiffs appellant filed an appeal before the First Additional District & Sessions Judge, Kannuaj, which too was dismissed vide judgment and decree dated 11.12.2009, hence the instant Second Appeal.

It is stated that defendant respondent Smt. Roshan Ara had moved an application paper no.3C interalia, that she was married wife of Shahid Khan who died on 17.11.1999, hence a succession certificate be issued in her favour in accordance with law. The plaintiffs appellant filed objection paper no.16C interalia, that Roshan Ara had no share over any property of late Shahid Khan, who was her husband as he had given divorce on 12.10.1999 prior to his death according to Muslim Law. It is also stated that in the aforesaid application that since Roshan Ara had not participated on his death in any of the last rite and rituals, hence she could not claim any share in the property of late Shahid Khan; and that in order to harass the plaintiffs appellant she had filed the suit under influence of other persons.

The Court below has considered the rival contentions of the parties and while deciding the question of validity of Talaq ( divorce) paper no.37A1 noted on the ground that it was objected by the counsel for Roshan Ara that it is a manufactured document and in fact neither there was any circumstance for 5 days giving divorce by the husband, Shahid Khan, (since deceased ) to his wife Roshan Ara just prior to his death nor any such divorce was in fact given to her by her late husband. The Court below has considered the fact that Shahid Khan before his death was admitted on 6.10.1999 in Aligarh in a hospital at Aligarh where he was being treated for cancer and was discharged by the Doctor on 11.10.1999 as there was no hope for his survival.

The Court below has recorded a finding of fact that from the statement of Mohd. Rahid, O.P.W. 1 it appears that Roshan Ara had gone to her mother''s house with property papers on 9.10.99 whereas witness to the divorce Lajja Ram stated that Roshan Ara was present in the house when divorce was being pronounced by Shahid Khan( since deceased) and that at that time Talaqnama was reduced in writing.

In so far as appellate Court is concerned, a categorical conclusion has been arrived at that Shahid Khan deceased husband of Roshan Ara is alleged to have signed the divorce in three languages i.e. Hindi, English and Urdu and it does not bear the name, parentage and address of the witnesses and since the plaintiffs appellant have claimed that Roshan Ara had been divorced by her husband in their presence, therefore, the burden of proof was on them to have proved this fact beyond doubt. The appellate Court has emphasized that late Shahid Khan in the alleged written divorce paper no.37A1, is said to have stated 3 times that he is giving Talaq to his wife Roshan Ara and all of them present may hear it and may also communicate the same to her i.e. Roshan Ara his wife which shows that she was not present at that time as has been deposed by one of the witnesses on behalf of plaintiffs appellants.

From perusal of the judgment and papers filed along with the appeal it is evident that the appellate Court found the divorce claimed by the plaintiffs appellant to be not above suspicion. It has confirmed the findings of the trial Court that Talaq has not been proved between Roshan Ara and her husband late Shahid Khan. Rather, document of divorce paper no.37A1 is a manufactured document. The Court further noted that according to the facts and circumstances of the case and that from the evidence on record it is evident that the plaintiffs appellant have given contradictory statements.

The relevant portion of the judgment and decree of the appellate Court dated 11.12.2009 is as under:

It may be that divorce can be oral but the Courts below have seen the conduct of the plaintiffs appellant and the defendant respondent minutely and have also found that paper no.37A1 could not be relied upon. The witness O.P.W.1, Rahid Khan on behalf of the plaintiffs appellant Thassan Begum and others have given contradictory statements which totally belies the factum of divorce said to have been given by Shahid Khan (since deceased) husband of Roshan Ara to her. In this regard, the circumstances explained in her statement ( Annexure3 to the appeal) as to why she could not present at the time of death of her husband may also be seen. It is evident from reading of paragraph 2 of her written statement that in fact the plaintiffs appellant had tried to snatch and take away the bags containing property papers and had threatened her with dire consequences creating compelling circumstances for her to leave the house immediately. They had forbidden her to enter in the house. However, as her husband was seriously ill she still came to look after him and take care of him. It may also be noted that she had taken her husband for treatment to Kanpur, Agra and Aligarh and that she had sold her ornaments to get medical care and treatment for her husband. Therefore, it can not be said that she had gone away with her brother on 9.11.99 willingly leaving her husband to die on 17.11.99.

In this regard her written statement ( Annexure3 to the appeal) given in paragraphs 1,2,3,4 and 5 are quoted below:

Even if, it is assumed to be correct that she had gone with her real brother on 9.11.99 it was not with any oblique motive. It appears that she had sold her jewellery for treatment of her husband. The condition of Shahid Khan was so serious that doctors released him from hospital on 11.10.99 for they could not provide any treatment for cancer to him which had spread to such an extent that he breathed his last on 17.11.99. There was no occasion for the husband at all with she had whom remarried so much has given divorce while breathing his last. The only circumstance for giving of alleged talaq by Sri Shahid Khan (since deceased) is that he was informed by the plaintiffs appellant that she had gone with her brother to her " Mayka'' on 9.11.99 taking the suitcase in which papers pertaining to his property were kept.

It may be that she had gone with her brother to raise money for treatment of her seriously ill husband in a hospital with better facilities and after all she was to inherit the property of her husband in accordance with law. Therefore, her case appears to be believable rather than those of plaintiffs respondents. There appears to be no illegality or infirmity in the judgments of the Courts below. The contention of learned counsel for the plaintiffs appellant that the Courts below have erred in law in passing the impugned judgment and decree without considering the material on record is not proved. The suit as well as the appeal have been decided by framing of proper issues and that the Courts below have not committed an error in law in disbelieving the divorce said to have been given on 12.10.1999 by the husband is also not proved. The contention of learned counsel for the plaintiffs appellant that the findings recorded by the Courts below were perverse and based on no evidence as well as are against the evidence on record and have been given on surmises and conjectures is not supported from record. It is not necessary that the divorce be given in writing and it can be oral and is completed when the husband of a Muslim lady gives talaq repeatedly saying three times in continuance which is reduced in writing as in the instant case then the Courts have to see the attending circumstances. In this case, the Courts below have given findings of fact that plaintiffs appellant failed to prove their case and no reliance can be placed upon the alleged Talaqnama alleged to have been executed on 12.10.99.The Courts below have considered all arguments and the issues framed on basis of the pleadings of the parties. If the plaintiffs appellant had any grievance that issues have not been properly framed, they could have raised this point in the Courts below but cannot raise it for the first time in second appeal. Concurrent findings of fact recorded by Courts below on basis of evidence and is not perverse does not require any interference by this Court.

I do not find any error of law or misdirection of the Courts below in deciding any issue in the instant case. No substantial question of law is involved in the present appeal.

The appeal is accordingly, dismissed. No order as to costs.