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2004 DIGILAW 167 (GAU)

Md. Sazid Hazarika v. Mustt. Alam Ara Begum

2004-03-07

I.A.ANSARI

body2004
JUDGMENT I.A. Ansari, J. 1. This revision is directed against the order, dated 14.12.01, passed by the learned Chief Judicial Magistrate, Guwahati, in Misc. Case No. 25/97, under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, whereby the learned Court below directed the second party-revision petitioner to pay to the first party-opposite party a sum of Rs.50,000 as Mahr (Dower) and Rs.5,000 as maintenance for the period of Iddat. 2. In a nutshell, the facts giving rise to the present revision may, in brief, be stated as follows : (i) The first party-opposite party instituted Misc. Case No. 25/97 aforementioned claiming payment of dower amount to the tune of Rs.50,000 and maintenance for the period of Iddat, her case being, briefly stated, thus. The parties to the proceeding were legally wedded husband and wife, their marriage having been solemnized, on 8.7.91, according to Muslim Personal Law. The Mahr (dower) fixed for the marriage was Rs.50,001. After the marriage, the first party lived at the house of the second party as his wife, but soon after the marriage, the second party raised demands for cash money and other valuables and since the first party was unable to meet the demands so raised, she was put to torture, both physically as well as mentally. The second party, on 9.2.92, left the first party in front other parents' house. As no maintenance was provided to the first party by her husband, she instituted a proceeding before the Principal Judge, Family Court, for maintenance under Section 125 Cr.P.C. As the second party, on 24.7.97, produced, in the said maintenance proceeding, a talaqnama (i.e., document of dissolution of marriage) indicating that his marriage with the first party stood dissolved, order, dated 24.9.92, was passed in the said maintenance proceeding, whereby first party's prayer for maintenance was rejected on the ground that she had been divorced by her husband. The first party, therefore, instituted the present proceeding seeking payment of Mahr (i.e., dower) of Rs.50,001 and also prayed for maintenance for the period of Iddat amounting to a sum of Rs.5,000. This proceeding too was contested by the second party, the case of the second party being that the Mahr was of an amount of Rs.8,001 and not Rs.50,001. (ii) In course of time, both the parties adduced evidence, each of the parties having examined four witnesses. This proceeding too was contested by the second party, the case of the second party being that the Mahr was of an amount of Rs.8,001 and not Rs.50,001. (ii) In course of time, both the parties adduced evidence, each of the parties having examined four witnesses. Upon considering the materials on record and hearing the parties, the learned Court below passed the impugned order, dated 14.12.01, aforementioned. Aggrieved by this order, the second party has, now, approached this Court with the present revision. 3. I have perused the materials on record. I have heard Mr. MH Choudhury, learned Counsel for the second party-petitioner, and Mr. N Dhar, learned Counsel for the first party-opposite party. 4. Before entering into the merit of the present revision, it is necessary to bear in mind that ordinarily, a Court, while exercising revisional powers under its criminal jurisdiction, will not, interfere with the findings arrived at by the Trial Court unless the findings are found to be perverse on account of the fact that the impugned order does not take into account the evidence on record or the same has been passed ignoring the evidence on record or the law relevant thereto or wholly against the weight of the evidence on record. In case of criminal proceeding, such as the present one, if the findings arrived at are on the basis of the evidence on record, the revisional Court will not substitute its own views in place of the views, which the trial Court has adopted. 5. Under the Muslim Personal Law, Mahr (Dower) is a sum of money or other property, which the wife is entitled to receive from the husband in consideration of the marriage. A Muslim marriage, for being valid, needs the presence of two male persons as witnesses. If two male persons are not available as witnesses, then, in place of each male person, two female persons are required as witnesses. Since the parties to the present proceeding are Muslims by faith, it is necessary to determine as to who were the witnesses to the marriage and it is their evidence on the basis of which one can determine as to what the dower amount was. 6. Since the parties to the present proceeding are Muslims by faith, it is necessary to determine as to who were the witnesses to the marriage and it is their evidence on the basis of which one can determine as to what the dower amount was. 6. Keeping in view the above aspects of Muslim Personal Law, when I turn to the case at hand, what I notice is that according to the evidence of PW 2 (Asgar Ali Dewan), Nasimullah was the witness to the marriage from the end of the second party and Abdul Khalique was the witness to the said marriage from the side of the first party. The evidence so given by PW 2 has gone challenged by the second party. There can, therefore, be no escape from the conclusion that the witnesses to the marriage were Abdul Khaleque and Nasimullah. In the case at hand, the first party examined, besides PW 2, PW 3 (Inamat Ali Choudhury), elder brother of the first party, as a person, who had acted as a guardian for the first party at time of the marriage and had witnessed the marriage. Both these witnesses corroborate each other, when they claim that the Mahr amount was Rs.50,001. These assertions of PW 2 and PW 3 were supported by PW 1 (i.e., Abdul Khaleque) who was, admittedly, one of the witnesses to the said marriage. So far as Nasimullah is concerned, who was, according to the evidence of PW 2, the other witness to the said marriage from the end of the second party, he has not been examined by the second party as a witness nor has any reason been assigned for his non-examination, though he was, as indicated hereinbefore, a witness to the said marriage from the side of the second party. For the omission to examine Nassimullah, no explanation is discernible from the evidence on record. 7. The evidence adduced by the first party, as indicated hereinabove, was sought to be dislodged by the second party on the basis of his own evidence and also the evidence of DW 3 (Salehuddin), who functioned as Wakil (i.e. as a person, who puts forth the proposal for, marriage, on behalf of the bride groom, to the bride). 7. The evidence adduced by the first party, as indicated hereinabove, was sought to be dislodged by the second party on the basis of his own evidence and also the evidence of DW 3 (Salehuddin), who functioned as Wakil (i.e. as a person, who puts forth the proposal for, marriage, on behalf of the bride groom, to the bride). This witness (i.e., DW 3) did not support the case of either party inasmuch as his evidence is that he does not remember as to what the amount of Mahr was. So far as DW 2 (Janed Ali) is concerned, he has stated that he was not a formal witness to the marriage, but he was one of the persons present in the marriage ceremony and he claims that the Mahr was 8,001. In tune with the evidence of DW 2, DW 1 (Samsul Huda) has deposed that he was the man, who had held the prayer for the marriage and he has claimed that the Mahr was Rs.8,001. 8. From the evidence on record, as discussed above, it clearly follows that there were two formal witnesses to the said marriage ceremony, the two witnesses being Abdul Khaleque (PW 1) and Nassimullah (who was the witness to the said marriage ceremony from the side of the second party), but Nassimullah has not been examined by the second party. The withholding of the witness, Nassimullah, from the Court by the second party leaves this Court with no option, but to draw adverse inference against the second party, the inference being that had Nassimullah been produced and examined as witness, he would not have supported the case of the second party and that is why, he was withheld by the second party In the face of the evidence of PW 1 that the Mahr was Rs.50,001 and in view of the fact that the evidence so given by PW 1 remained unshaken in his cross examination, there was no reason why the formal witness to the said marriage ceremony should not have been believed, by the learned Court below. When the parties to the preceding had adduced evidence contradicting each other, as regards the amount of Mahr fixed by the parties for the marriage, the best evidence would have been the evidence of the two formal witnesses to the marriage and the evidence of the Wakil. When the parties to the preceding had adduced evidence contradicting each other, as regards the amount of Mahr fixed by the parties for the marriage, the best evidence would have been the evidence of the two formal witnesses to the marriage and the evidence of the Wakil. In view of the fact that the Wakil, namely, Salehuddin (DW 3) failed to recollect as to what the amount of Mahr was, the learned Court below had no option, but to rely upon the evidence of PW1 given to the effect that the amount of Mahr was Rs.50,001. For placing reliance on the evidence of PW 1 and having come to the conclusion that the Mahr fixed was Rs.50,001, the learned Court below has, I find, assigned cogent and convincing reasons and nothing could be pointed out, at the time of the hearing of this revision, to show as to why the conclusions reached by the learned Court below should be interfered with. 9. Because of what have been discussed and pointed out above, I am firmly of the view that the impugned order, dated 14,12.2001, is consistent with the materials on record and the law relevant thereto. The impugned order, therefore, needs no interference. 10. In the result and for the reasons discussed above, this revision fails and the same shall accordingly stand dismissed. No orders as to cost. 11. Send back the LCRs. Revision dismissed.