IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT THE HON'BLE MS JUSTICE G.ROHINI SECOND APPEAL No. 670 OF 2009 DATE: 01.06.2010 Between: Karamala Saniulla ..... Appellant AND Shahira Begum .... Respondent The Court made the following : THE HON'BLE MS JUSTICE G.ROHINI SECOND APPEAL No. 670 OF 2009 JUDGMENT: This second appeal is preferred against the judgment and decree dated 13.03.2009 passed by the Court of the Senior Civil Judge, Kadiri in A.S.No.18 of 2005, confirming the judgment and decree dated 26.04.2005 in O.S.No.175 of 2001 on the file of the Court of the Principal Junior Civil Judge, Kadiri. The plaintiff is the appellant herein. He filed O.S.No.175 of 2001 to declare that the defendant/respondent herein is not his wife and to restrain the defendant/her men and agents from indulging in acts of violence against the plaintiff. The defendant contested the suit and on appreciation of the evidence produced by the parties, the trial Court by judgment dated 26.04.2005 dismissed the suit with costs. Aggrieved by the same, the plaintiff preferred A.S.No.18 of 2005 on the file of the Court of the Senior Civil Judge, Kadiri, which was also dismissed by judgment and decree dated 13.03.2009. Hence, this second appeal by the plaintiff. The facts in brief are as under:- The appellant and the respondent (herein after referred to as plaintiff and defendant respectively) were married in the year 1991 in accordance with Shariat law and they were blessed with three children. It is alleged in the plaint that the defendant having developed dislike and hatred towards the plaintiff had left for her parents house and therefore, the plaintiff had pronounced Talaq. It is claimed that the defendant was well aware of the said fact and though he offered to pay the amount for iddat period, she refused to receive the same. Subsequently, the plaintiff married one Ayisha Begum. It is alleged that thereafter the defendant started interfering with the marital life of the plaintiff and was also indulging in the acts of violence against the plaintiff. In the circumstances, the plaintiff sent a notice dated 05.06.2000 pronouncing Talaq and enclosing the amount for iddat period. However, the defendant refused to receive the same. Hence, the suit seeking a declaration that the defendant was not the wife of the plaintiff and for permanent injunction to restrain her from interfering with the life of the plaintiff. The defendant in her written statement denied all the allegations made in the plaint and pleaded that at the instance of his brothers and sisters, the plaintiff harassed and ill-treated her to bring more money from her parents and ultimately, she was necked out of the marital house in the month of March, 1999. Since then, she was residing with her parents along with their youngest daughter. The plaintiff’s plea that he had pronounced Talaq as well as the allegations that the defendant was resorting to acts of violence and was interfering with the marital life of the plaintiff with one Ayisha Begum were specifically denied. On the basis of the above pleadings, the trial court settled the following issues for trial: 1. Whether the plaintiff has given divorce to the defendant under customary law while so, whether the said Talaq is valid? 2. Whether the marriage between the plaintiff and the defendant is dissolved? 3. Whether the plaintiff is entitled for permanent injunction restraining the defendant from interfering with his personal affairs? 4. To what relief? The plaintiff got himself examined as PW.1. He also examined PWs.2 and 3 and marked Ex.A-1 document to substantiate the plaint allegations. On behalf of the defendant DWs.1 to 3 were examined. On appreciation of the evidence, both oral and documentary, the trial Court found that the plaintiff’s claim that the marriage between the plaintiff and the defendant was dissolved was not proved. Accordingly, while holding that the plaintiff was not entitled for permanent injunction as sought for, the suit was dismissed by judgment dated 26.04.2005. The lower appellate Court on re- appreciation of the evidence, while confirming the findings recorded by the trial Court, dismissed the appeal by judgment dated 13.03.2009. Aggrieved by the same, the present second appeal is filed. Heard the learned counsel for the appellant and perused the material available on record. The learned counsel for the appellant/plaintiff while pointing out that Ex.A-1-returned cover containing the plaintiff’s letter to the defendant pronouncing Talaq was opened in the open Court in the presence of the defendant, vehemently contended that the same shall be treated as valid communication to the defendant and atleast from that day onwards the marriage stood dissolved. Thus, it is contended by the learned counsel for the appellant that there is absolutely no justifiable reason to reject the declaration sought by the plaintiff that the defendant was not his wife. Admittedly, Ex.A-1-returned cover, which was sent by courier service was returned un-served. Though it is claimed by the plaintiff that it was refused by the defendant, no evidence could be let in on his behalf to establish the said plea and no other evidence was available to show that as on the date of suit the defendant had knowledge about the pronouncement of Talaq. Hence, the mere fact that the contents of the letter in Ex.A-1-returned cover were read out in the Court in the presence of the defendant cannot be treated as valid pronouncement of Talaq to grant a decree as prayed for. At any rate having failed to raise such a plea before the Courts below, it is not open to the plaintiff now to contend that the marriage stood dissolved on the date of opening of Ex.A-1-returned cover by the trial Court. As could be seen the Courts below on proper appreciation of the evidence available on record found that the marriage between the plaintiff and the defendant was not dissolved. Such concurrent finding of fact recorded by the Courts below, warrants no interference by this Court in exercise of jurisdiction under Section 100 of Civil Procedure Code. Moreover the matter does not involve any question of law much less substantial question of law. Hence, the Second Appeal is dismissed. No costs. ____________ Date: 01.06.2010 G. ROHINI, J Ivd