DISSOLUTION OF MARRIAGE, ALLOWANCE AND DELIVERY EXPENSES

IN THE COURT OF  (NAME OF THE JUDGE), JUDGE FAMILY COURT, (NAME OF THE City) .

1.     ( NAME OF THE PLAINTIFF WITH FULL ADDRESS)

2.      (NAME OF THE MINOR). 

…..Plaintiffs….

                                      Versus:

(NAME OF THE DEFENDANT)

         

                                                                                                 …..Defendant….                     

         

                              Family Suit No.

Date of Institution

                             Date of Decision

SUIT FOR DISSOLUTION OF MARRIAGE, MAINTENANCE ALLOWANCE AND RECOVERY OF DELIVERY EXPENSES.

Presence:     (NAME OF THE Advocate  for plaintiffs.

                   (NAME OF THE Advocate for defendant.

JUDGEMENT.

                   The instant suit for dissolution of marriage, recovery of maintenance allowance and recovery of delivery expenses has been filed by the plaintiffs alleging that plaintiff No.1 got married with defendant on 00.00.0000 in accordance with Muslim Rites and started to live with the defendant in his house but the attitude of defendant remained cruel towards the plaintiff from very outset and he had let the plaintiff out of his home in wearing apparels after torturing her after six months of marriage. It is further asserted in the plaint that since then plaintiff is residing in the house of her parents and defendant has not paid a single penny to the plaintiff in shape of maintenance allowance. It is further asserted in the plaint that plaintiff No.2 was born in the house of parents of plaintiff No.1 and all the expenditures were born by her parents. It is further asserted that defendant is residing in States and doing business over there and his monthly income is not less then Rs.300,000/- per month and can easily pay Rs.10,000/- per month to each plaintiff as maintenance allowance. Plaintiff has asked the defendant to pay maintenance allowance and delivery expenses but the defendant has refused to do so. Due to this act of defendant, plaintiff has developed hatred towards the defendant and is not ready to live with the defendant within the prescribed limits of Allah Almighty and she filed present suit for dissolution of marriage, recovery of maintenance allowance and delivery expenses.

2.                Conversely, defendant contested the suit through written statement and raised legal as well as factual objections and prayed for dismissal of the same. 

3.                Pretrial reconciliation proceedings were ended in smoke and statements of parties were got recorded in this regard. In the light of statements of plaintiff No.1, the suit to the extent of dissolution of marriage was decreed in favour of plaintiff on the grounds of Khula (SOUGHT HERSELF DIVORCE) u/s 10 (4) of Family Court Act, 1964 vide order dated 00.00.0000 and out of the divergent pleadings of the parties, the following issues were hereby framed, which are reproduced in verbatim:-

ISSUES.

1.     Whether the plaintiffs are entitled to recover their maintenance allowance from the defendant as prayed for? OPP.

2.     Whether the plaintiff No.1 is entitled to recover delivery expenses Rs.50,000/- from the defendant? OPP.

3.     Whether the instant suit is not maintainable and liable to be dismissed? OPD.

4.     Relief.

4.                In order to prove their respective pleading, both the parties were offered to produce their evidence. Plaintiff herself appeared in the witness-box as PW-1 and submitted her affidavit as Exh.P1 and also examined (NAME OF THE WITNESS as PW-2 who submitted his affidavit as Exh.P2 in oral evidence. In documentary evidence, plaintiff produced Fard Jamanbandies (TITLE/OWNERSHIP) of properties of defendant as Exh.P3 to Exh.P5, receipts of prescription 00 in numbers as Exh.P6 to Exh.P62 and closed plaintiff’s oral as well as documentary evidence.

5.                On the other hand, defendant got examined (NAME OF THE DEFENDANT WITNESS as DW-1 and submitted his affidavit as Exh.D1, (NAME OF THE DEFENDANT WITNESS), father of defendant as DW-2 and (NAME OF THE  DEFENDANT WITNESS) as DW-3  who also submitted their affidavit as Exh.D2 and Exh.D3 respectively in oral evidence and no documentary evidence has been tendered by the defendant.

6.                Post trial reconciliation proceedings between the parties failed.

7.                I have heard the arguments of the learned counsel for the parties and have gone through the record with their assistance.

My issue-wise findings are as under:-

ISSUE NO.1.

8.                Onus probandi of this issue was upon the plaintiffs. In order to prove this issue, plaintiff No.1 herself appeared in the witness-box as PW-1 and tendered her affidavit as Exh.P1 narrating the same facts as laid down in the plaint. PW-2 also supported the stance of plaintiff through evidence in shape of affidavit as Exh.P2. Plaintiff also tendered copy of registered record of rights showing that defendant is owner of different properties being Exh.P3 to Exh.P5. Plaintiff also produced receipts of prescription regarding delivery expenses as Exh.P6 to Exh.P62. On the contrary father of defendant himself appeared as DW-2 and tendered his affidavit being Exh.D2 Defendant has got examined (NAME OF THE WITNESS as DW-1 and (NAME OF THE WITNESS as DW-3 who has also tendered their affidavits as Exh.D1 & Exh.D3, respectively.

9.                Plaintiff through present suit has claimed that she has been dispossessed by the defendant after six months of marriage and a daughter was born in the house of parents of plaintiff No.1. Plaintiff has contended that defendant has not paid any maintenance allowance to the plaintiffs since the period of her desertion. As far as period of desertion is concerned, It is transpired from the evidence that plaintiff during cross examination has admitted the suggestion of defendant’s counsel that after the birth of minor/plaintiff No.2 her paternal grand mother had brought gifts for the minors. This statement of plaintiff during cross examination establishes this fact that defendant had got good terms with the plaintiff at the time of birth of minor daughter. Therefore, stance of plaintiff that she has been dispossessed by the defendant after six months of marriage is rebutted through above mentioned statement of plaintiff. Thus, plaintiff has failed to establish the period of desertion but it is an admitted fact that minor was born in the house of parents of plaintiff and is not returned to the house of defendant after her birth. Moreover, defendant has not produced any evidence to prove that he use to pay maintenance allowance to minor after her birth. It is evident from the file that the defendant has not bothered to appear before the Court and no Special Power of Attorney has been tendered by any one on his behalf. As far as right of recovery of maintenance allowance of plaintiff No.1 is concerned, she has also sought decree of dissolution of marriage. It is well settled principle of law that a husband is bound to maintain her wife who is legally accessible to him and in no case he is under any obligation to provide maintenance to the wife not ready to join him. In the instant case plaintiff has herself sought dissolution of marriage thereby establishing that she is not ready to join the defendant, therefore, she is not entitled to get any maintenance allowance for the past period. She remained in the house of her parents and she is only entitled to recovery Rs.10,000/- for the period of Iddat ( THREE MONTHS ONLY)

10.              As far as claim of minor/plaintiff No.2 for recovery of maintenance allowance is concerned, admittedly the minor is real daughter of defendant being father defendant is bound to maintain his child. Defendant is admittedly residing in States and had never appeared before the Court during the proceedings of the present suit. Plaintiff has also tendered documents pertaining to the property of defendant thereby establishing that defendant is a well of person and can maintain his child in proper manner. Keeping in view the age of minor daughter and other circumstance, minor/plaintiff No.2 is held entitled to recovery maintenance allowance from the defendant/father @ Rs.4000/- per month from since when she left the house of the defendant  till her marriage with 10% annual increase. Hence, issue in hand is decided accordingly.

ISSUE NO.2.

11.              The onus to prove this issue was on the plaintiff. Plaintiff through present suit had claimed recovery of delivery expenses amounting to Rs.50,000/-. In order to prove her claim, plaintiff herself appeared as PW-1 and has tendered her affidavit as Exh.P1 and she has got examined (NAME OF THE WITNESS as PW-2 who also tendered affidavit as Exh.P2. Plaintiff has claimed that minor was born in the house of her parents when she was deserted by the defendant and defendant has not paid delivery expenses. In this regard statement of plaintiff is very important as she while appearing as PW-1 during cross examination admitted that mother of defendant/paternal grand mother of minor had gifted away certain articles to the plaintiffs after birth of minor. This statement made by the plaintiff establishes that she was having good terms with the defendant at the time of birth of minor, therefore, she has badly failed to discharge the onus of this issue and the same is decided in negative.

ISSUE NO.3.

12.              Onus to prove this issue was upon the defendant. Defendant has not led any evidence to discharge the onus of this issue, hence the same is decided in negative.

RELIEF.

13.              In the light of findings on the above said issues, the suit of the plaintiffs for recovery of maintenance allowance is hereby partially decreed in favour of the plaintiff and against the defendant and plaintiff No.1 is held entitled to get maintenance allowance from the defendant @ of Rs.10,000/- per month only for the period of Iddat (THREE MONTHS AFTER DIVORCE/DESERTION ) and remaining claim of plaintiff No.1 for past maintenance is declined. Plaintiff No.2/minor is held entitled to recover maintenance allowance @ of Rs.4000/- per month from when she left the house of the defendant, till her marriage with 10% annual increase. As far as claim of plaintiff regarding delivery expenses being not proved stands declined. Decree sheet be prepared accordingly. Parties are left to bear their own costs. File of this suit be consigned to record room after its due completion.

Announced:

00-00-0000.

Judge Family Court,

                   Certified that this judgement consists of four (4) pages, each page has been dictated, read over, corrected and signed by me.

Dated:-00.00.0000

Judge Family Court,