Patna High Court
Md. Naushad Hussain vs Shahida Khaton And Anr on 2 September, 2025
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.936 of 2016
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Md. Naushad Hussain Son of late Md. jalil, Resident of villageP.O-
Bithauli,P.s-Baheri,District-Darbhanga.
... ... Appellant/s
Versus
1. Shahida Khaton and Anr Wife of Md. Naushad and Daughter of Abdul
Hamid, Resident of village-Bithouli,P.s.-Baheri,District-Darbhanga,At
present Residing with father at village jai Kishanpur,p.o-Bairampur,P.s-
Biroul,District-Darbhanga
2. Abdal Hamid Son of Rahim Resident of village-jai Kishunpur,P.o-
Biraul,District-Darbhanga.
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr.Bishwanath Prasad Singh
For the Respondent/s : Mr.
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CORAM: HONOURABLE THE ACTING CHIEF JUSTICE
And
HONOURABLE MR. JUSTICE S. B. PD. SINGH
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE S. B. PD. SINGH)
Date : 02-09-2025
Heard the parties.
2. The present appeal has been filed under Section
19(1) of the Family Court Act, 1984 impugning the
judgment and decreed dated 25.06.2016 passed by learned
Principal Judge, Family Court, Darbhanga in Matrimonial
Case No. 209 of 2012 filed under Section 281 of the
Muslim Law, whereby learned Family Court has dismissed
the matrimonial suit filed on behalf of the appellant-
husband for restitution of conjugal rights with the
Patna High Court MA No.936 of 2016 dt.02-09-2025
respondent-wife.
3. The case of the appellant as per petition filed
before the Family Court is that the marriage of the appellant
with the respondent was solemnized according to the
Muslim Shariyat Law in the year, 2003. The marriage was
consummated and out of the wedlock, three child were
born. It is alleged by the appellant that the respondent fled
away with the 3rd child, who, at that time was aged about
three years from her matrimonial house and when the
appellant went to his Sasural for Rukshati of his wife, the
respondent and other family members refused to the
Rukshati. The respondent is a quarrelsome lady and she
used to quarrel with the appellant and other in-laws family
members on petty issues. The two minor children are living
with the appellant and it has become difficult for him to
take care of their children in the absence of their mother.
Hence, he has filed the present restitution petition.
4. In response to the summons/notices, the
respondent appeared and filed her written statement. In her
written statement, she has disputed and denied the claim of
the appellant. She has stated that after marriage, she went to
Patna High Court MA No.936 of 2016 dt.02-09-2025
her Sasural with the appellant where she was tortured,
abused and assaulted by the appellant as well as other in-
laws for not fulfillment of dowry demand. Even the birth of
three children did not change the habit and attitude of the
appellant and other in-laws family members. The
respondent always tried to lead a conjugal life with the
appellant but it was the appellant who always used to
assault the respondent without any fault or reason. While
assaulting, the appellant became wild and he does not think
whether respondent is dead or alive. The appellant himself
ousted the respondent from her matrimonial house. The life
of the respondent is always in danger at her matrimonial
house. In the above circumstance, the respondent does not
want for restitution of conjugal rights with the appellant.
Hence, the petition filed by the appellant Under Section 281
of Muslim Law is fit to be dismissed.
5. The Principles of Mahomedan Law clearly defines
the circumstances under which the restitution of conjugal
rights will be made applicable. Section 281 of the Principles
of Mohomedan Law reads as under:-
"281. Suit for restitution of conjugal
Patna High Court MA No.936 of 2016 dt.02-09-2025
rights (1) Where a wife without lawful
cause ceases to cohabit with her husband,
the husband may sue the wife for
restitution of conjugal rights.
6. In the present case, the respondent-wife herself
annexed attested copy of the TALAKNAMA certificate
issued by USTAJ MADARSA RAHMANIYA, SUPAUL,
BIRAUL, DARBHANGA which clearly suggests that
appellant-husband has divorced the respondent-wife. She
also does not want to live with the appellant-husband due to
his cruel behaviour. Para 12 of the impugned order reads as
under:-
"12.Apart from this in support of
allegation imposed by the Opposite
party/wife against her husband
specifically attributed in the pleading of
her Written Statement dated-19.7.2013
together with petition dated-7.2.2014,
attested copy of TALAKNAMA
Certificate, issued by USTAJ MADARSA
RAHMANIYA, SUPAUL, BIRAUL,
DARBHANGA, has been filed by the
Opposite Party/wife to the case. The
contents mentioned therein clearly
Patna High Court MA No.936 of 2016 dt.02-09-2025
consolidate the allegation and attitude
of the applicant which shows that the
situation of the family status or
atmosphere is not healthy as well as
habitable for harmony of life of both
spouse. It is worthwhile to mention here
that, it is not required to discuss more at
this stage in context of attested copy of
TALAKNAMA issued by WASLAM
KUMWARAK TULLAH KU
TAW(KAJI).USTAJ MADARSA
RAHMANIYA, SUPAUL, BIRAUL
(DARBHANGA), however, the document
filed on behalf of the Opposite
party/wife cannot be otherwise
overlooked, anyhow it flashes the bitter
relation of both the spouse."
7. The Muslim Laws clearly stipulates that once
Talaq is pronounced and it took a considerable time for it to
be restored, the only option for a divorced couple to lead a
conjugal life is remarriage. The Principles of Mohomedan
Law clearly defines the remarriage of divorced couple.
Section 336(5) of the Principles of Mohomedan Law reads
as under:-
Patna High Court MA No.936 of 2016 dt.02-09-2025
"(5) Remarriage of divorced couple.-
(i) Where the husband has repudiated his
wife by three pronouncements [311(2)
and 311(3)(i)], it is not lawful for him to
marry her again until she has married
another man, and the latter has divorced
or died after actual consummation of the
marriage. The presumption of marriage
arising from an acknowledgment of
legitimacy (267) does not apply to a
remarriage between divorced persons
unless it is established that the bar to
remarriage created by the divorce was
removed by proving an intermediate
marriage and a subsequent divorce after
actual consummation. Even if a
remarriage between the divorced persons
is proved, the marriage is not valid unless
it is established that the bar to
remarriage was removed, the mere fact
that the parties have remarried does not
raise any presumption as to the fulfillment
of the above conditions. A marriage
without fulfillment of the above
conditions is irregular, not void.
(ii) In all other cases, the divorced
parties may remarry as if there had been
no divorce either during the iddat or after
Patna High Court MA No.936 of 2016 dt.02-09-2025
its completion.
8. Considering the fact that Talaq has already been
performed between the parties and in the entire evidence,
the appellant-husband has not denied the aforesaid assertion
of the respondent and the respondent herself does not want
to continue matrimonial relationship with the appellant-
husband, we are not inclined to interference with the
impugned judgment. The Family Court has rightly
dismissed the Matrimonial Case No. 209 of 2012 filed on
behalf of the appellant-husband.
9. The present appeal is dismissed accordingly,
affirming the impugned judgment.
( S. B. Pd. Singh, J)
(P. B. Bajanthri, ACJ)
Shageer/-
AFR/NAFR AFR
CAV DATE 23/06/2025
Uploading Date 02/09/2025
Transmission Date N/A
