Chattisgarh High Court
Mohammad Islam vs Smt. Naaj Baano on 10 February, 2022
1
FA (MAT) No.87 of 2019
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
FA (MAT) No.87 of 2019
{Arising out of judgment & decree dated 2-11-2019 passed by the Judge,
Family Court, Korba, District Korba, in civil suit No.101-A/18}
1. Mohammad Islam S/o Late Mo. Mushtaq Ali, Aged About 36
Years R/o Q.No. D-43, Subhash Block, S.E.C.L. Korba, Tahsil
And District Korba Chhattisgarh.
---- Appellant /Plaintiff
Versus
1. Smt. Naaj Baano W/o Mohammad Islam, Aged About 30 Years
R/o H.B. 09, N.C.L. Colony, Singrouli, District Singrouli,
Madhya Pradesh.
---- Respondent/Defendant
For Appellant Mr. Vikas Pandey, Advocate
For Respondent Mr. Faiz Kazi, Advocate
Hon'ble Mr. Justice Goutam Bhaduri &
Hon'ble Mrs. Justice Rajani Dubey
Judgment on Board
Per Goutam Bhaduri, J.
10-02-2022
1. Challenge in this appeal is to the judgment & decree dated
2-11-2019 passed by the Judge, Family Court, Korba, District
Korba, in civil suit No.101-A/18 whereby the application filed by
the appellant/husband for restitution of conjugal rights, was
rejected.
2. The undisputed facts are that both the parties are governed by the
principles of Hanafi school of Mahomedan Law. The appellant-
Mohammad Islam was married to the respondent-Naaj Baano on
FA (MAT) No.87 of 2019
28-6-2011. Out of wedlock, a baby girl was born to them. The
allegations and counter allegations were levelled on each other
purport that the husband contended that the wife used to
misbehave with his mother, who was ailing and without any
sufficient cause the wife was taken away by her family members
to Singrouli (Madhya Pradesh) i.e. her parental place. According
to the husband, without any lawful reason she was being kept
there and has not returned, as such, the husband filed an
application for restitution of conjugal rights.
3. The defence of the respondent/wife, per contra, was that she was
subjected to torture by assault and she was not allowed to visit her
parental house for four years. She further alleged that under the
state of intoxication, the husband used to severely beat her,
resulting into severe bleeding. Respondent/wife also alleged that
she was made to talk to her mother and other family members on
phone while the husband used to beat her and she was made to
talk during beating. When she fell ill, in the year 2018, her family
members went to matrimonial home at Korba to know her health
condition and they found that she was ailing and was not well,
therefore, they requested the appellant and his family members to
send the respondent back to Singrouli, but it was refused.
Thereafter, with the intervention of the police she had to be
rescued from the place, therefore, there is sufficient reason of not
joining the company of the husband by the wife as she was treated
with mental and physical cruelty.
FA (MAT) No.87 of 2019
4. The appellant/husband (Mohammad Islam) examined himself as
PW-1 and also examined Abdul Mazid (PW-2) & Ashraf Ali
(PW-3). The respondent/wife (Smt. Naaj Bano) examined herself
as DW-1 and also examined her maternal uncle Farukha Aajab
(DW-2) and her brother Mohammad Sikku (DW-3).
5. Learned Court below after evaluating the evidence found that no
sufficient cause is made out by the husband to take the wife back,
as she was living separately because of cruelty meted out to her as
such dismissed the application filed by the husband for restitution
of conjugal rights.
6. Learned counsel for the appellant would submit that the Court
below failed to take into account the evidence of the husband,
which was corroborated by two independent witnesses. He would
further submit that in unequivocal terms it was established that the
wife used to misbehave with the mother of the husband, who was
ailing and refused to serve her. The family members of
respondent forcibly taken to her maternal place i.e. Singrouli. In
respect of allegation of assault, the husband completely denied the
same. It is submitted that the husband has made a complaint to
the Masjid Committee about misbehaviour of wife, therefore, it
was the wife who was at fault, despite the said fact the husband
wants to keep her. Learned counsel would next submit that the
finding of the Court below is against the facts and evidence
available on record.
FA (MAT) No.87 of 2019
7. On the other hand, learned counsel appearing for the respondent
would submit that the evidence on record would show that the
wife was being treated with cruelty and she was physically
assaulted many a times. He would further submit that the
documentary evidence and the report to the police by the defence
witness would show the conduct of the husband that how the wife
was being treated. He would also submit that the wife was not
allowed to visit her parental home by the husband for four years
and the wife was confined in her matrimonial home, therefore, the
same would amount to cruelty. For the first time in the year 2018
while she was ailing with the intervention of her family members
and the police she was rescued and taken her to Singrouli and for
this reason the wife did not join the company of the husband.
Learned counsel would next submit that after birth of child in the
year 2013 at Singrouli, the wife went to her matrimonial home and
thereafter, she was confined for four years and was not allowed to
go to her parental home. The wife was being beaten mercilessly as
such the finding recorded by the Court below is well merited,
which do not call for any interference.
8. We have heard learned counsel for the parties at length and
perused the record.
9. It is not in dispute that the parties are governed by the principles
of Hanafi school of Mahomedan Law. Section 281 (as described
by Mulla-in principles of Mohamedan Law) which is expressly
FA (MAT) No.87 of 2019
been applied purports that the suit for restitution of conjugal rights
can be filed by husband where a wife without lawful cause ceases
to cohabit with her husband, the husband may sue the wife for
restitution of conjugal rights. Sub-section (2) of Section 281 gives
defence to a wife that when it is of such a character as to render it
unsafe for the wife to return to her husband's dominion it would
be a valid defence. For the sake of brevity, the provisions of
Section 281 (2), the valid defence, which can be availed by wife,
is reproduced hereunder :
"281. Suit for restitution of conjugal
rights.--
(1) xxx xxx xxx
(2) Cruelty:--Cruelty, when it is of such
a character as to render it unsafe for the
wife to return to her husband's dominion,
is a valid defence to such a suit. "It may
be, too, that gross failure by the husband
of the performance of the obligation,
which the marriage contract imposes on
his (s. 265) for the benefit of the wife,
might, if properly provide, afford good
grounds for refusing to him the assistance
of the Court."
10. The appellant/husband (Mohammad Islam) (PW-1) has stated that
his wife was aggressive. Though she used to serve his mother, but
at times she used to say unacceptable things by which the health
condition of his mother used to become deteriorated. The
husband further stated that in respect of behaviour of wife he had
made a complaint to the Colliery Masjid wherein the wife was
advised to behave properly, but no improvement was seen
FA (MAT) No.87 of 2019
thereafter. He also stated that the wife asked the husband to take
transfer in a different company by husband, but it was not possible
for him. Though it is further stated that the wife wanted divorce
for which stamp papers were purchased; signature of wife was
also obtained; but he did not sign it. The said documentary
evidence has not been produced before the Court below to
ascertain the correctness of such oral statement so the
documentary evidence, which was in possession of appellant was
held back by him to draw adverse inference. This witness stated
that in the year 2018, the family members of wife forcibly took
away her to Singrouli.
11. PW-2 Abdul Mazid though in his examination-in-chief stated that
the husband used to treat his wife very well, but in cross-
examination disowned the knowledge whether she was being
beaten by the husband or not. He accepts that he has never made
any conversation with the respondent. He also disowned the
suggestion given to him that because of severe beating to wife the
police were called. He completely expressed his inability about
that knowledge. He also stated that he cannot say that if the wife
was forced to live with the husband, it would be a threat to her
life.
12. Likewise, the statement of PW-3 Ashraf Ali, who is the friend of
appellant, expressed his inability about dispute between the
husband and wife. He only stated that husband had approached
FA (MAT) No.87 of 2019
one nkMwndtk, which is like social Court, and filed an application.
In the said matter, notice was issued to the wife, but they did not
appear for the reason that cases are pending before the Court. He
also expressed his inability to say that what kind of behaviour was
meted out by the husband to wife.
13. The evidence of PW-2 Abdul Mazid & PW-3 Ashraf Ali appears
to be completely hearsay and no substantial fact has been
established. It appears that they did not have any personal
knowledge about the relation inter se between husband & wife.
14. With respect to statement of respondent/wife (Smt. Naaj Bano)
(DW-1) she stated that initially after marriage behaviour of the
husband was fine. She gave birth to a baby child at her parental
home in the year 2013 and after two months she came back to her
matrimonial home. Subsequent to that she was subjected to
physical torture and assault. She also stated that because of severe
assault and beating by husband she used to bleed from her nose
and mouth. The assault continued for four years and she was not
allowed to go to her parental home and was always subjected to
misbehaviour. She also stated that in the year 2018 her family
members came to Korba to know about her health condition and
having seen that her physical condition at deteriorated state, they
wanted to take her to Singrouli, but the husband declined to send
her. Subsequently, with the intervention of local police she was
allowed to go to her parental home. According to this witness
FA (MAT) No.87 of 2019
because of ill treatment and assault made to her she do not want to
join the company of husband and she has lost faith about her
safety. In cross-examination also certain suggestions though were
made that because of ailment of mother of husband she could not
have gone to her matrimonial home, but the same was denied and
replied that she was being assaulted and not allowed her to go to
her parental home for four years at a stretch, before she was taken
back by her parents.
15. DW-2 Farukha Aajab, who is the maternal uncle of respondent,
also confirmed the fact that husband used to assault his niece
(respondent herein) and while assault was continued she was
forced to talk to her parents over phone so as to display the voice
of assault on phone. He further stated that for four years the
respondent was not allowed to visit her parental place. DW-2
Farukha Aajab also stated that the respondent was not allowed to
contact her parents even during festivals. Narrating the incident,
further he has stated that while they went to see the respondent
they saw that she was in very bad physical condition as such they
wanted to take her back, but the husband refused, as such after
long deliberation at the end with the intervention of police they
could take the respondent to Singrouli. In cross-examination
nothing has been explored except the fact of corroboration of
assault to wife.
FA (MAT) No.87 of 2019
16. DW-3 Mohammad Sikku, brother of the respondent, narrating the
incident of 2016, deposed that he went to Korba after hearing
about the assault and made a report to the police, which is
exhibited as a document D/1. Perusal of document D/1 dated
14-3-2016 addressed to the Station House Officer, Police Station
Korba, would show that the report was made with allegation of
frequent assault. Reverting to the notice of Masjid Committee, the
witness has deposed that after receipt of notice both the husband
and wife stated that they would live peacefully and allegation of
intoxication has also been made on husband. In the cross-
examination nothing has been explored but maintained the stand
that his sister was being assaulted by the appellant.
17. After evaluation of evidence, which has come on record, the
allegation of assault has not been negated. The fact which
emerges out would show that after the child was born to the wife
at Singrouli (maternal place), thereafter when she went back to
Korba (matrimonial place) in the year 2014 till the year 2018 for
about four years the wife was not allowed to leave the
matrimonial home and she was subjected to assault as and when
she wanted to go to her parental home. The incident of assault,
which is within the ambit of cruelty gets a further edge with the
supporting circumstances that for four years the wife is not
allowed to visit her parental home and was forcibly restrained. In
normal situation, had there been the relations would have been
smooth, the girl would have been allowed to visit to her parents at
FA (MAT) No.87 of 2019
reasonable intervals. The reasonable interval cannot be for a long
stretch of four years, when the parental and matrimonial houses
are not far placed. The evidence which has come on record that
the parents when went to see their daughter after a long gap, after
looking to her condition, when they wanted to take her with them
it was resisted by husband. So the probabilities of presumption
that husband confined the wife for four years and did not allow
her to visit her parents, coupled with evidence of assault would
amount to mental and physical cruelty. Therefore, the contention
of wife wherein she has categorically contended that she has
reasonable apprehension about her life in case she goes back to
husband would indicate the trust she repose at her husband and
behaviour of husband is contrary to general expectation of society.
18. Considering all the circumstances, it would show that the
statement of wife is corroborated by other evidence, therefore, we
would lean to believe the testimony of wife, which is not been
successfully rebutted. Under the Mahomedan Law, by which the
parties are governed, the cruelty would be a valid defence to resist
the prayer for restitution of conjugal rights. The circumstances
and the evidence read together would show that the wife has
reasonable apprehension of her safety with respect to her life to
return to her husband's dominion, therefore, the defence which
has been raised by the wife is validly accepted.
FA (MAT) No.87 of 2019
19. For the reasons stated hereinabove, we are of the considered
opinion that no ground for restitution of conjugal rights was made
out by the appellant/husband. The impugned judgment and decree
passed by the Court below is just and proper warranting no
interference of this Court.
20. In the result, the appeal sans merit is liable to be and is dismissed,
leaving the parties to bear their own cost(s).
21. A decree be drawn accordingly.
Sd/- Sd/-
(Goutam Bhaduri) (Rajani Dubey)
Judge Judge
Gowri
FA (MAT) No.87 of 2019
HEAD NOTE
Husband not allowed wife to go to her parental home for
four years; and wife alleges assault, the same would
amount to cruelty; and would be a valid defence to claim
restitution of conjugal rights.
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