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Jafar Ahmad Khan v. Smt. Nafeesa Begum - SECOND APPEAL No. 861 of 2006 [2006] RD-AH 19031 (10 November 2006)


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Court No. 24

Second Appeal No. 861 of 2006

Jafar Ahmad Khan Vs. Smt. Nafeesa Begum

Hon'ble Umeshwar Pandey, J.

Heard learned counsel for the appellant.

This second appeal arises out of the judgment and decree dated 05.04.2006 passed by the lower appellate court.

The respondent wife had filed a suit for recovery of maintenance @ Rs. 5,000/- per month stating that she is legally wedded wife of the appellant and out of the wedlock four daughters were born,  who have been married and settled in their lives. Later on, the defendant appellant refused to maintain the wife and started torturing her. She has fallen ill and is suffering from uterus cancer. Since she was short of funds to continue her treatment etc. and maintain her and the husband defendant was not looking after her, she under compulsive  circumstances had filed the suit. The suit was contested by the husband appellant stating that no relationship of wife and husband after 9.5.2000 exists between the parties, on which date the defendant divorced her. Since the divorce between the parties had taken place, there is no liability of maintaining the plaintiff by the defendant husband.

The trial court on the pleadings of the parties framed issues and after recording the evidence, has given a finding that the relationship of wife and husband still subsists and since the wife was not in a position to maintain herself, the defendant was liable to maintain and make payments to her so that she may survive. Accordingly, the respondent's suit was decreed and maintenance @ Rs. 1,000/-  per month was awarded. The appellant thereafter filed the first appeal before the court below in which the findings recorded by the trial court were found to be sound and it was held that the divorce, as claimed by the defendant husband, was actually not legal and in accordance with the personal law applicable to the parties. The appeal was thus, dismissed.

Learned counsel for the appellant submits that the divorce had actually taken place and it became effective from 9.5.2000. Thereafter, there is no liability of payment of maintenance upon the appellant.

A perusal of the judgment of the courts below and other documents filed on record shows that the only case, which appears to have been taken by the husband, is that since there was divorce between the parties, the liability to maintain the wife upon the husband was no more there. The appellant defendant in his evidence is found to have admitted the fact that before or after the alleged divorce the amount of dower, as fixed between the parties being Rs. 9011/- had not been paid by the husband. According to the personal law applicable to the present case, the payment of dower either prior or immediately after the divorce is a must for the alleged divorce to become effective. In the event of non payment, the claim of divorce as made by either of the parties is not to be accepted. The appellate court has quiet rightly gone into this aspect in the matter and has cited different cases of the apex court including the case of Shamim Aar Vs. State of U.P., U.P.C.R. 2002 (11) 539. The apex court in that case has specifically held that in order to become a divorce effective, it is necessary that it should be declared by the husband and a mere otherwise communication of this fact to the wife through any means is not sufficient. In the present case, the courts below have found that there is no evidence whatsoever made available from the side of the defendant that this alleged divorce was declared by the husband in presence of the plaintiff wife. Mere allegations of divorce in a different petition or affidavit filed in the court will not make that the divorce as legal and effective. Otherwise also admittedly the amount of dower is not paid to the wife as provided under law, the claim of divorce is not acceptable.

In the aforesaid view of the matter, it appears that the courts below have very rightly decreed the relief for award of maintenance to the respondent wife in which no interference in the present second appeal is required. No substantial question of law arises for decision. The appeal is without substance and is hereby dismissed at the admission stage.




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