1. This appeal has been filed by the appellant/defendant being aggrieved by the judgment and decree dated 26.07.2014 passed by 2nd Additional
Principal Judge, Family Court, Bhopal in RCS No.371-A/2012, whereby the learned Family Court has granted a decree of divorce in favour of
the respondent and directed the appellant to pay a sum of Rs.2,51,786/- as dower (mehar) to the respondent.
2. It is not in dispute that marriage of the appellant/husband and respondent/wife was solemnized on 22.04.2010 as per Muslim Law and Customs
at Bhopal and dower/Mehar amount of Rs.2,51,786/- was settled between them.
3. Facts of the case are that a petition for divorce and Mehar has been filed by the respondent. The appellant and respondent are husband and
wife. Their marriage was solemnized on 22.04.2010 according to Muslims Law and Customs. A sum of Rs.2,51,786/- was fixed as dower
(Mehar) between them. It was alleged by the respondent that dower amount has not been paid by the appellant. After their marriage, the appellant
and his family members demanded a sum of Rs.5,00,000/- in cash and used to assault her. Usually, they did not provide her food etc. The
respondent also came to know about some bad habits of the appellant and his family members. She resided only for three months in her
matrimonial house. In the month of July 2010, she had left matrimonial house. Hence, she filed an application for divorce before the trial Court.
4. The appellant denied all the allegations made by the respondent and submitted that the respondent resided with him only for one month and 12
days. She wanted to marry another person. Her behaviour was not good with the appellant and his family members. She used to quarrel with them
on small issues. Appellant was always ready to keep the respondent with him because they have a girl child. Hence, the appellant has prayed to
dismiss the divorce petition filed by the respondent.
5. Learned trial Court has come to the conclusion that the appellant had caused cruelty to the respondent/wife. He neglected to maintain his wife
and daughter. Therefore, decree of divorce has been passed by the trial Court in favour of the respondent/wife and also directed the appellant to
pay a sum of Rs.2,51,786/- as dower (Mehar) to the respondent/wife.
6. Against the aforesaid findings, the appellant/husband has filed this appeal on the grounds that the respondent adduced evidence before the trial
Court without pleading. Such evidence has no value in the eye of law. The trial Court emotionally passed the decree in favour of the respondent.
Further, the Family Court has no jurisdiction to grant a decree of dower (Mehar) in view of Section 3(III) of Muslim Women (protection of Rights
on Divorce) Act, 1986. Hence, decree passed by the trial Court was without jurisdiction and it is null & void. Therefore, it is liable to be set aside.
7. We have heard learned counsel for both the parties at length and perused the record.
8. It is not in dispute that marriage of the appellant and respondent was solemnized on 22.04.2010. The trial Court found that the appellant
harassed the respondent for dowry. The respondent deposed that he and his family members used to follow western culture like drinking liquor
and dancing with other men in the hotels. She was not willing for it. When the respondent refused to do so, the appellant and his family members
harassed her.
9. We find that there is evidence on record to establish that the appellant went to Dubai alone leaving his wife at Hyderabad with his family
members. We think that it is false allegation against the appellant because the respondent (wife) stated in her chief-examination that after 38 days
from marriage, the appellant went to Dubai. Their marriage was solemnized on 22.04.2010. She left her matrimonial house on 10.7.2010 till the
appellant do not come back from Dubai to accompany her. Therefore, we do not rely on the testimony of the respondent.
10. We also find that the appellant has failed to establish that the respondent used to quarrel with him and his family members. In this regard, he
has not deposed any thing against the respondent. He only deposed that the respondent gave birth to a female child during April of 2011 at Bhopal
and at that time, he came at Bhopal and requested the respondent to accompany him to go to Hyderabad, where family members of the
respondent were residing but the respondent refused it. In crossexamination, he admitted that notice for residing together has not been sent by him
to the respondent nor he filed any petition for restitution of conjugal rights against the respondents.
11. The respondent has made many allegations against the appellant. Particularly (i) to follow western culture, (ii) to pressurize her for abortion, (iii)
to give her divorce but such allegations are not pleaded in her divorce petition. This fact was ignored by the learned trial Court.
12. We found an agreement Ex.P/8 on record, which was executed by the appellant on 23.5.2011 at Bhopal. Respondent -Smt. Safa Jafri (AW-
1) and Aaftab Haidar (AW-2) have also stated about it. From agreement Ex.P/8, it is revealed that the appellant assured his wife to live according
to her wish. In Ex.P/8, we do not find any allegation as referred in earlier paragraph 11, particularly relating to cruelty against the appellant. It
appears that actually the respondent was mainly aggrieved with the parents of appellant. There is a small issue for ""non adjustment"" has been arises
between them.
13. In Ex.P/8, it is also mentioned that the appellant will reside at 5 F. A. No.687/2014 Bhopal. Smt. Safa Jafri (PW-1) and her maternal uncle
Aaftab Haidar (PW-2) deposed that the appellant ousted the respondent from his house. On the other hand, in para 5, the respondent has stated
that she was ousted by her in-laws? for demand of dowry. When she informed about the incident to her husband on phone the appellant/husband
told her to obey his parents otherwise she may go to Bhopal. Then, she informed the said incident to her Mama and Mama came to Hyderabad.
She came back to Bhopal on 10.7.2010 with them. For this incident, in agreement Ex.P/8 it is narrated by the appellant that his parents harassed
his wife so he directed to his wife to go back at Bhopal. In para 15, the respondent admitted that on 01.10.2011 when she came to Bhopal, the
appellant was not in India.
14. In para 13, Aftab Hyder (AW-2) admitted that his brother Kamjan booked tickets for Hyderabad on 4.6.2010 for journey i.e. on 9.7.2010
and for returning journey i.e. on 12.7.2010. Ticket was booked on 4.6.2010. It was preplanned that they took back the respondent from
Hyderabad. This statement corroborate the testimony of the appellant. The appellant also stated that after birth of his daughter at Bhopal, he came
there. Thereafter, a compromise deed was executed by him from the compulsion of the family members of the respondent. Till now the respondent
was residing at Bhopal. Ex.P/8 shows that the respondent was not tortured by the appellant. The appellant came to the house of respondent to
take her for cohabitant. Therefore, he executed an agreement Ex.P/8 at Bhopal.
15. Again we wants to mention here the condition of the agreement Ex.P./8. The appellant was agree to work and reside with the respondent at 6
F. A. No.687/2014 Bhopal. If such condition will not be fulfilled by the appellant, the respondent may proceed against him and his family members
and in case of his untimely death, his property will go to his wife and daughter.
16. This agreement was executed at Bhopal, which establish that the appellant came to Bhopal to meet his wife and daughter. He also agree to
comply all the wishes of his wife. We do not find that the respondent was subjected to harass by her husband. Therefore, the respondent is not
entitled to get decree of divorce against her husband/appellant. In our considered opinion, the learned trial Court has wrongly allowed the petition
in favour of the respondent.
17. Learned counsel for the appellant has placed reliance on the judgment passed in case of Amjum Hasan Siddiqui Vs. Smt. Salma B., AIR 1992
Allahabad 322 and contended that application by divorced woman for sum of Mehar or dower can only be entertained by Magistrate concerned,
the Family Court has no jurisdiction to entertain such petition.
18. In the light of above principle, we also with agreement to accept the contention of the respondent. The learned trial Court has wrongly directed
the appellant to pay the Mehar amount to the respondent. The respondent is entitled to recover it from the competent Court. Accordingly, the
appeal is allowed. The impugned judgment is hereby set aside.
