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Allahabad High Court · body

1979 DIGILAW 383 (ALL)

Naeem Begam v. Alam Ali Khan

1979-03-28

DEOKI NANDAN

body1979
JUDGMENT Deoki Nandan, J. - This second appeal arises from a suit for recovery of prompt dower. The suit was decreed by the trial court but the decree has been reversed by the lower appellate court on the finding that the plaintiff had relinquished the dower debt after the marriage. 2. Learned counsel for the appellant has contended that the finding of the lower appellate court that the plaintiff had relinquished the dower debt after the marriage is erroneous in law. For arriving at this finding, the lower appellate court has relied on the contents of paragraph 5 of the plaint and has observed that in that paragraph she admitted that she demanded the dower on her first co-habitation after the marriage and further that her own statement about the time when she demanded the dower debt was vacillating. Paragraph 9 of the plaint reads as under; " ;g fd okfnuh us viuk esgj ekSvTtqy tks dkuwuu idfgyh jkr flyirs lbZ;k ds ln tqu'kw ds rkYywdkr ij okftc gks pqdk gS eqarokfrj ekaxk ysfdu izfroknh us cs otg onfu;rh esgj nsus ls lkQ bUdkj dj fn;kA " The plain meaning of the plea is not that the dower was demanded by the plaintiff before co-habitation took place but that it had become due on co-habitation having taken place and was repeatedly demanded thereafter but the defendant dishonestly refused to pay the same. I have looked into the statement of the plaintiff on this point. In her examination-in-chief she did not specify any point of time when dower was demanded. In cross-examination, she stated that she lived and cohabited with the defendant for about 5 or 6 years after marriage and that she did not demand the dower so long as she was living with the defendant and demanded it only after she had been turned out by the defendant from his house and that it was demanded some 2 or 4 months after her being turned out from the house. She denied the suggestion that she had ever excused the dower or that she was ever asked to excuse the dower. It is thus clear that the finding of the lower appellate court that the plaintiff had relinquished her prompt dower is vitiated by a misreading of the plain.t and the plaintiffs statement on oath. She denied the suggestion that she had ever excused the dower or that she was ever asked to excuse the dower. It is thus clear that the finding of the lower appellate court that the plaintiff had relinquished her prompt dower is vitiated by a misreading of the plain.t and the plaintiffs statement on oath. Further no countenance could be given to the defendants claim that the plaintiff had relinquished her prompt dower, for what the defendant said was, that the whole amount of the dower, that is, Rs. 4,000 had been relinquished by the plaintiff in the presence of Rahmatullah Khan, and Badiullah Khan, there was no question about the relinquishment of the whole of the dower. The question was about the relinquishment of only prompt dower. The alleged witnesses of relinquishment were not produced by the defendant. The only witness produced by the defendant in addition to himself was Alim Ullah Khan, (D.W. 2), who stated on being cross-examined that half of the amount of the dower was prompt and the remaining half was deferred. With regard to the story of relinquishment, all that the witness said was that he heard at some shop that the plaintiff had excused the payment of the dower. He expressly said that the plaintiff had not excused the payment of the dower in his presence. 3. It must, therefore, be held that the plaintiff had not excused the payment of the prompt dower of Rs. 2,000 and that it was payable on demand. 4. The lower appellate court has also held that the suit for recovery of prompt dower was barred by limitation as it should have been filed within three years of the demand, which according to the lower appellate court was made just after the marriage and refused. Indian Limitation Act, 1908, prescribed, by Articles 103 and 104 a period of limitation of three years, in the ease of prompt dower from the date when the dower is demanded and refused, or where n such demand has been made during the continuance of the marriage, when the marriage is dissolved by death or divorce. The present suit was, however, filed after the repeal of the Indian Limitation Act, 1908 by the Limitation Act, 1963. The present suit was, however, filed after the repeal of the Indian Limitation Act, 1908 by the Limitation Act, 1963. The Limitation Act, 1963 does not contain any article corresponding to the Articles 103 and 104 of the Indian Limitation Act, 1908; on the other hand Section 29 (3) thereof expressly provides that save as otherwise provided in any law for the time being in force with respect to marriage and divorce, nothing in this Act shall apply to any suit or other proceeding under any such law. 5. Mr. Rajesh Ji Verma, learned counsel for the respondent, contended that a suit for recovery of dower could not be said to be a suit with respect to marriage and divorce. It cannot, however, be disputed that the right to recover dower arises out of the Muslim Law of Marriage and Divorce. Muslim Law of Marriage and Divorce does not prescribe any limitation for recovery of prompt dower apart from the provisions of the repealed Indian Limitation Act, 1908. The policy of law appears to be that there should be no limitation, for a suit in matrimonial matters. I am, therefore, of the opinion that the plaintiffs claim for prompt dower could not be said to have been barred by limitation. 6. Mr. Rajesh Ji Verma then contended that the suit was one governed by Article 113 of the Limitation Act, 1963. There is no substance in this contention. As noticed above, Section 29 (3) of the Limitation Act, 1963 expressly provides that nothing therein, which obviously includes Article 113 and the Schedule thereto, applies to any proceeding under the law with respect to marriage and divorce. 7. The appeal succeeds and is allowed with costs. The judgment and decree of the lower appellate court are set aside and the decree of the trial court decreeing the plaintiffs suit for recovery of Rs. 2,000 is restored with costs throughout.