Nazma Begum Vs. Irsad Ali - Court Judgment

SooperKanoon Citationsooperkanoon.com/463105
SubjectFamily;Criminal
CourtAllahabad High Court
Decided OnDec-22-1994
Case NumberCr. Revision No. 1404 of 1991
JudgeN.B. Asthana, J.
Reported inI(1995)DMC443
ActsMuslim Women (Protection of Rights on Divorce) Act, 1986 - Sections 3; Code of Criminal Procedure (CrPC) , 1973 - Sections 397
AppellantNazma Begum
Respondentirsad Ali
DispositionRevision allowed
Excerpt:
- n.b. asthana, j.1. the revisionist filed misc. case no. 896 of 1989, under section 3 of the muslim women (protection of rights on divorce) act, 1986 in the court of i addl. munsif magistrate, shahjahanpur. the claim of the petitioner for the recovery of rs. 1000/- as maintenance allowance for the iddat period, rs. 15,000/- for the return of dowry and presents given at the time of marriage and for the recovery of rs. 6,000/-as mehr and rs. 1,232/- given as salami at the time of marriage was decreed. in all the amount came to rs. 23,232/-. it was not disputed that the revisionist was married to the opposite party and subsequently the opposite party divorced her.2. the opposite party filed criminal revision no. 6 of 1991 which was partly allowed on 14.8.1991 by the then ii addl. sessions judge, shahjahanpur. the claim of the revisionists was reduced to rs. 3.000/-. aggrieved by it the revisionist has come to this court.3. it was not disputed that mehr of rs. 6000/- was agreed to be paid by irshad ali, opposite party. according to the revisionist this amount was not paid. according to the opposite party this amount was handed over to the revisionist before the consummation of marriage. the trial court did not believe the version of the opposite party regarding the return of mehr of rs. 6000/-. the revisional court on the basis of the evidence adduced in the case come to the conclusion that there is a custom amongst the opposite party that the mehr is paid before the consummation of marriage and therefore, in all probability this amount would have been paid before the consummation of marriage. it may be noted that no such custom was pleaded in the written statement, nor any evidence was adduced to show that the alleged custom was being followed in the family of the opposite party from times immemorial.4. a list of the articles of dowry and presents was prepared at the time of marriage. the opposite party denied that any such list was prepared. the trial court came to the conclusion that a list was in fact prepared and on that basis had decreed the claim of the revisionist for the recovery of rs. 15,000/-. in the said list the price of the gold ornaments have also been given. no evidence was adduced in the case as to what was the price of gold at the time. the revisional court came to the conclusion that on the date of marriage value of gold can not be more than rs. 5,00/- per 10 grams. in this list the price of earrings was given rs. 4618/-. the revisional court came to the conclusion that the value of the earrings has been highly inflated. it however did not come to any conclusion regarding its' value. the price of the finger ring in the list has been given as rs. 2,200/-. its price was reduced to rs. 250/- without there being any evidence to that effect. the price of teeka in the list is shown to be rs. 3,300/-. the revisional court reduced its price to rs. 500/-stating that it can not be of more than 5 or 10 grams without there being any evidence to that effect on the record. in the same way the value of the articles of dowry and marriage present was arbitrarily reduced.5. it is an established law that the revisional court can not go into the question of fact and come to a different conclusion that the conclusion arrived at by the trial court unless the findings is perverse and not based on evidence record. in the instant case the revisional court not only has reversed the finding of fact recorded by the trial court but has based its findings upon surmises and conjectures without any evidence on record in support of its findings. the revisional court has acted beyond the scope of the powers of a revisional court and has committed illegality and material irregularities. such a judgment can not be sustained.6. the revision is allowed. the judgment and order dated 14.8.1991 passed in criminal revision no. 6 of 1991 by the ii addl. sessions judge, shahjahanpur are set-aside. the matter is remanded back to sessions judge, shahjahanpur who would either decide the revision himself afresh or would transfer it to a court not presided over by the presiding officer who decided the above revision.
Judgment:

N.B. Asthana, J.

1. The revisionist filed Misc. Case No. 896 of 1989, under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 in the Court of I Addl. Munsif Magistrate, Shahjahanpur. The claim of the petitioner for the recovery of Rs. 1000/- as maintenance allowance for the Iddat period, Rs. 15,000/- for the return of Dowry and presents given at the time of marriage and for the recovery of Rs. 6,000/-as Mehr and Rs. 1,232/- given as Salami at the time of marriage was decreed. In all the amount came to Rs. 23,232/-. It was not disputed that the revisionist was married to the opposite party and subsequently the opposite party divorced her.

2. The opposite party filed Criminal Revision No. 6 of 1991 which was partly allowed on 14.8.1991 by the then II Addl. Sessions Judge, Shahjahanpur. The claim of the revisionists was reduced to Rs. 3.000/-. Aggrieved by it the revisionist has come to this Court.

3. It was not disputed that Mehr of Rs. 6000/- was agreed to be paid by Irshad Ali, opposite party. According to the revisionist this amount was not paid. According to the opposite party this amount was handed over to the revisionist before the consummation of marriage. The Trial Court did not believe the version of the opposite party regarding the return of Mehr of Rs. 6000/-. The Revisional Court on the basis of the evidence adduced in the case come to the conclusion that there is a custom amongst the opposite party that the Mehr is paid before the consummation of marriage and therefore, in all probability this amount would have been paid before the consummation of marriage. It may be noted that no such custom was pleaded in the written statement, nor any evidence was adduced to show that the alleged custom was being followed in the family of the opposite party from times immemorial.

4. A list of the articles of dowry and presents was prepared at the time of marriage. The opposite party denied that any such list was prepared. The Trial Court came to the conclusion that a list was in fact prepared and on that basis had decreed the claim of the revisionist for the recovery of Rs. 15,000/-. In the said list the price of the gold ornaments have also been given. No evidence was adduced in the case as to what was the price of gold at the time. The Revisional Court came to the conclusion that on the date of marriage value of gold can not be more than Rs. 5,00/- per 10 grams. In this list the price of earrings was given Rs. 4618/-. The Revisional Court came to the conclusion that the value of the earrings has been highly inflated. It however did not come to any conclusion regarding its' value. The price of the finger ring in the list has been given as Rs. 2,200/-. Its price was reduced to Rs. 250/- without there being any evidence to that effect. The price of Teeka in the list is shown to be Rs. 3,300/-. The Revisional Court reduced its price to Rs. 500/-stating that it can not be of more than 5 or 10 grams without there being any evidence to that effect on the record. In the same way the value of the articles of dowry and marriage present was arbitrarily reduced.

5. It is an established law that the Revisional Court can not go into the question of fact and come to a different conclusion that the conclusion arrived at by the Trial Court unless the findings is perverse and not based on evidence record. In the instant case the Revisional Court not only has reversed the finding of fact recorded by the Trial Court but has based its findings upon surmises and Conjectures without any evidence on record in support of its findings. The Revisional Court has acted beyond the scope of the powers of a Revisional Court and has committed illegality and material irregularities. Such a judgment can not be sustained.

6. The revision is allowed. The judgment and order dated 14.8.1991 passed in Criminal Revision No. 6 of 1991 by the II Addl. Sessions Judge, Shahjahanpur are set-aside. The matter is remanded back to Sessions Judge, Shahjahanpur who would either decide the revision himself afresh or would transfer it to a Court not presided over by the Presiding Officer who decided the above revision.