A. DASTAGIR SAB Vs. N. SHARIFFUNNISA AND ANOTHER

JUDGEMENT

(1.) RESPONDENT 1 is the legally wedded wife of the appellant. She filed a suit for the recovery of Rs. 525/ - being the amount of dower, for the maintenance amount of Rs. 540/ - for three years previous to the suit; for directing the defendant to fulfil conditions of the decree in favour of the appellant (Order Section 310 of 39 -40 on the file of the Munsiff, Shimoga), or in the alternative for a decree granting divorce to the plaintiff by the dissolution of the marriage between herself and the appellant. The appellant denied his liability to pay either the dower or the amount of maintenance claimed; regarding the relief of fulfilment of the conditions in Order Section 310 of 39 -40, he pleaded that the conditions were too onerous to be complied with and that respondent 1 is not entitled to the dissolution of the marriage as the requirements for the grant of the relief are not existing. The trial Court decreed the suit for Rs. 250/ - being the prompt portion of the dower and the rest of respondent 1's claim was dismissed. On appeal the Subordinate Judge gave a further relief by way of dissolution of marriage and directed the appellant to pay the institution fee due to the Government on the appeal memo. The defendant (appellant) has preferred the second appeal against the said decree.

(2.) THE main question that is argued is about the decree granting divorce. The decree in Order Section 310/39 -40 was for the restitution of conjugal rights filed by the defendant against the plaintiff on fulfilment of five conditions of which the first condition is that the defendant should deposit Rs. 250/ - being the prompt portion of the dower and the fifth condition is that the defendant should give security of two respectable persons to the effect that he would properly look after the plaintiff. Admittedly neither condition has yet been fulfilled. In - Najiman Nissa Begum Vs. Serajuddin Ahmed Khan, AIR 1946 Pat 467 it is laid down thus: "Where the husband refuses to pay the prompt dower and takes the defence, when a suit has been instituted to recover it, that there was no prompt dower payable by him, that the wife has relinquished a portion of that dower debt and that the balance has been converted into deferred dower, but the Court decides that the wife is entitled to the payment of her dower debt which, however, remains still unpaid, the wife can refuse to go and stay with the husband and the husband is bound to maintain such a wife.

(3.) APPEAL dismissed.