SHAHINA PRAVIN v. MOHAMMND SHAKEEL — 1986 DIGILAW 371 (DEL)

M. K. CHAWLA, J. ( 1 ) SMT. Shahina Parveen wife of Mohd. Shakeel is not satisfied with the Judgment of S. P. Singh Chaudhary, Additional District Judge, Delhi, dated 28th January, 1983, whereby the husband s Suit for restitution of conjugal rights was decreed. She has come up in Second Appeal before this Court praying for the restoration of the order of dismissal of the Suit. ( 2 ) IN order to appreciate the various contentions raised in this appeal, it will be advantageous to keep in mind the salient features of the controversy between the parties. On 12-3-1981, Mohd. Shakeel filed a suit for restitution of conjugal rights in the Court of Senior Sub-Judge, Delhi, on the averments that he was married to the defendant Shahina Parveen on 12th November, 1979 according to Muslims Rites of Sunni Sect; that they continued to enjoy a peaceful married life for quite sometime. The in-laws of the plaintiff persuaded the defendant to prevail upon the plaintiff to permanently stay at the defendant s parental abode instead of residing at her Sasural: the plaintiff refused the proposal: that thereafter the defendant in conspiracy with her parents devised a plan to live separately from the plaintiff, that in the pursuance of the said conspiracy the parents of the defendant approached the plaintiff and his father to allow the defendant to attend the marriage at Meerut; that the plaintiff without suspecting ; any foul play allowed the defendant to attend the said marriage and he also provided her with some money that thereafter for about 10/15 days, the plaintiff asked the defendant to return to his residence but she refused on some pretext or the other. However, on the intervention of the relations and friends of the plaintiff, the parents of the defendant agreed to send her back after the delivery of the child; that a baby girl was born to the defendant on 21-11-1984 and after the period of isolation, the defendant again refused to come to the house of the plaintiff. However, on the intervention of the relations and friends of the plaintiff, the parents of the defendant agreed to send her back after the delivery of the child; that a baby girl was born to the defendant on 21-11-1984 and after the period of isolation, the defendant again refused to come to the house of the plaintiff. Feeling aggrieved from the behaviour of the defendant and her parents, the plaintiff sent a letter to his wife on 5-11-1980 asking her to return to the matrimonial home; that in spite of the receipt of the letter, the defendant neither returned nor sent any reply; that on 15-12-1980, when the plaintiff approached the defendant and her parents for the return of his wife and the baby, he was physically assaulted by the inmates of his in-laws house, as a result of which he suffered injuries; that the Police case under Section 107/151, Criminal Procedure Code was registered against both the parties and a separate case under Section 324/34, Indian Penal Code against the assailants; that the said complaints are pending; thus being disgusted and frustrated the plaintiff ultimately sent a legal notice through his counsel requiring the defendant to return to her matrimonial home but in spite of the receipt of the notice, she has failed to come and live with the plaintiff, and left with no other option, the plaintiff filed the suit praying for the passing of a decree for restitution of conjugal rights against the defendant. ( 3 ) THE defendant in her written statement raised the preliminary objections, inter alia, that no cause of action has arisen for filing the suit, that the plaintiff has not come to the Court with clean hands; and that the plaintiff never cared to keep and maintain the defendant and in fact turned her out of the matrimonial home in wearing apparels after giving her severe beating. ( 4 ) ON merits, she took up the stand that at the time of her marriage, her parents gave huge dowry to the plaintiff who in fact was not satisfied with the same and pressed for more dowry. ( 4 ) ON merits, she took up the stand that at the time of her marriage, her parents gave huge dowry to the plaintiff who in fact was not satisfied with the same and pressed for more dowry. That as the demands of the plaintiff could not be met; he started giving severe beatings to the plaintiff (defendant?) and after a period of two months, turned her out of the matrimonial home; that the plaintiff illegally retained all the dowry articles, including jewellery and valuable clothes; that thereafter, neither the plaintiff nor any of his relations or friends ever approached her or her parents to take her back; that on the other hand, the defendant has always been approaching the plaintiff with a request that he should take her back to the matrimonial home, that even after the birth of the baby girl, the plaintiff never cared to pay pre-natal or post-natal expenses of the delivery; that neither the plaintiff nor anybody from his family cared to see the newly-born baby; that the alleged letters written by the plaintiff were in a way threats of causing bodily harm in case she refused to join his society, that on 15-12-1980, the plaintiff created a scene at her parents house by assaulting the inmates but while leaving the house, he also lodged reports with the Police by giving wrong facts. ( 5 ) LASTLY the defendant averred that she has apprehensions in her mind that in case she is forced to live with plaintiff, she will be harmed physically. The suit has been filed with a motive and is bad and liable to be dismissed. ( 6 ) IN the replication the plaintiff controverted the pleas raised by the defendant in her written statement and reiterated the facts stated in the plaint. ( 7 ) ON the pleadings of the parties, the following issues were framed: 1) Whether the defendant has a reasonable and just cause to withdraw from the company of the plaintiff ? OPD 2) Relief. ( 8 ) AS the onus of issue No. 1 was on the defendant, she appeared as her own witness and also examined her father D. W. 2 Mohd. Yamin. In rebuttal, besides plaintiff himself, P. W. 2, Shri Mangal Sen and P. W. 3 Shri Mohd. Sayeed, the brother of the plaintiff were also produced. OPD 2) Relief. ( 8 ) AS the onus of issue No. 1 was on the defendant, she appeared as her own witness and also examined her father D. W. 2 Mohd. Yamin. In rebuttal, besides plaintiff himself, P. W. 2, Shri Mangal Sen and P. W. 3 Shri Mohd. Sayeed, the brother of the plaintiff were also produced. ( 9 ) ON consideration of the entire oral and documentary evidence produced on record, learned Lower Court decided issue No. 1 in favour of defendant and on that basis dismissed the suit on 4-11-1981. Mohd. Shakeel filed the appeal which was heard and disposed of by Shri S. P. Singh Chaudhary, Additional District Judge, Delhi on 28-1-1983. The appeal was allowed and the suit of the plaintiff for restitution of conjugal rights was decreed leaving the parties to bear their own costs of the suit as well as the appeal. As stated earlier, the defendant has come up in appeal to this Court. ( 10 ) DURING the pendency of the suit in the Lower Court, Shahina Parveen filed a petition under S. 125 of the Code of Criminal Procedure on 3-8-1981 for the grant of maintenance. The learned Lower Court on consideration of the material before him allowed the maintenance at the rate of Rs. 300. 00 p. m. from the date of the filing of the petition. This finding wasalso confirmed by the order of Shri V. B. Bansal, Additional District Judge, Delhi on 4-5-1984, Shakeel Ahmed has filed criminal writ for the setting aside of the orders of the Lower Court granting maintenance. to his wife. By order Dated 12-7-1985, the then Hon ble Chief Justice directed that both the R. S. A. and the criminal writ be heard by the same Judge. However, at the two cases arise under different jurisdiction separate judgments are being delivered. to his wife. By order Dated 12-7-1985, the then Hon ble Chief Justice directed that both the R. S. A. and the criminal writ be heard by the same Judge. However, at the two cases arise under different jurisdiction separate judgments are being delivered. ( 11 ) IN the Second Appeal, learned Counsel for the appellant raised the following questions of law which arise out of the proceedings: 1) Whether decree for restitution of conjugal rights can be passed without payment of prompt dower: 2) Whether the institution of criminal cases against the wife and her relations amounts to cruelty against the wife; 3) Whether under the facts and circumstances of the case, the appellant has reasonable and just cause to withdraw from the company of the respondent:in fact, these are the only questions that require going into in the present appeal. ( 12 ) LEARNED Lower Court on consideration of the entire material on record came to the conclusion that as the plaintiff had treated the defendant with cruelty, she has a reasonable and just cause to withdraw from his company. He was further of the opinion that the plaintiff has not challenged the testimony of the defendant and her father in the cross-examination which fairly and squarely proves that the act of the plaintiff in beating the defendant amounts to physical cruelty and the further demands of dowry as well as the retention of articles given in marriage, has caused mental cruelty. ( 13 ) THE First Appellate Court, however, brought out certain contradictions in the statements of the defendants which according to him, throw doubt on their testimony. He also drew adverse inferences in not sending any reply to the legal notice of the plaintiff. The Court, however, did not discuss or relied upon the evidence of the plaintiff. In these circumstances, the finding of the Lower Court was reversed. ( 14 ) THERE is no dispute about the legal proposition that when the wife has a reasonable apprehension that her life is unsafe, she should not be compelled to live with her husband. The Court, however, did not discuss or relied upon the evidence of the plaintiff. In these circumstances, the finding of the Lower Court was reversed. ( 14 ) THERE is no dispute about the legal proposition that when the wife has a reasonable apprehension that her life is unsafe, she should not be compelled to live with her husband. As regards the necessity of corroboration to the wife s evidence regarding cruelty, the Bombay High Court in Shakila Banu v. Gulam Mustafa, AIR 1971 Bom 166 , held as under: "there is no rule of matrimonial law that even in a husband s suit for restitution of conjugal rights, the wife s evidence requires corroboration. The Indian Evidence Act does not require corroboration of a party in civil cases. The rule of corroboration is generally a rule of prudence and practice to be applied reasonably having regard to all surrounding circumstances. If the wife is beaten inside the husband s house, I do not think that it would be possible for the wife to produce witnesses to the beating having regard to the common course of events in such cases. " ( 15 ) WITH this background, let us examine the evidence of the defendant and her father. According to Shahina Parveen, her marriage with the plaintiff was performed on 12-11-1979, but after 15 days of the marriage, the plaintiff started "maarpeet" beating with her. In spite of that, she remained with her husband for two months. On one day, the plaintiff without any rhyme or reason, turned her out of the house with wearing apparels and asked her to bring Rs. 5000. 00 from her parents. She came to her father s house and thereafter the plaintiff never cared to enquire about her health or to send her money for her maintenance. She gave birth to a female child and in spite of the information having been conveyed to the plaintiff, he never cared to pay the delivery charges. She also stated that the plaintiff had already instituted criminal complaints against her and her family members raising an apprehension in her mind that her life will not be safe in the house of the plaintiff. She also stated that the plaintiff had already instituted criminal complaints against her and her family members raising an apprehension in her mind that her life will not be safe in the house of the plaintiff. Her evidence brings the case within the definition of cruelty as incorporated in S. 2 (viii) (a) of the dissolution of Muslim Marriages Act 1939, which reads as under: " (A) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical illtreatment. "in the cross-examination, the plaintiff no doubt brought out certain discrepancies with regard to the time of giving Maarpeet, the demand of Rs. 5000. 00 or Rs. 8000. 00, demand of dowry, the return of the articles of dowry, the birth of the female child and her maintenance. After carefully perusing the substance of the cross-examination, it can safely be said that the discrepancies sought to be made out are very minor in nature and do not go to the root of the matter insofar as the cruelty part is concerned. The fact remains that immediately after the marriage of the parties, the plaintiff started maltreating the defendant, it may be after 15 days of the marriage or within 2 months of the marriage. But the fact remains that the plaintiff used to give beating and treated the defendant with cruelty during her stay with him. The variation in the amount is neither here nor there and so is in the case of return of articles of dowry. ( 16 ) ONE fact which comes out of this evidence is the filing of a complaint u/s. 325/34 Indian Penal Code by the plaintiff against the father and brother of the defendant. During the course of arguments, the learned Counsel for the parties conceded that the plaintiff had also filed another complaint u/s. 301-A Indian Penal Code for negligently causing the death of the female child. In the quarrel which took place, at the house of the father of the defendant, both the parties were also challaned u/s. 107/151 Cr. P. C, The plaintiff in fact vigorously pursued the complaints which after the recording of evidence were dismissed. During the pendency of these criminal proceedings, the relations between the parties have become. more strained. Will the defendant feel safe in. case she is now directed to join and live with her husband? P. C, The plaintiff in fact vigorously pursued the complaints which after the recording of evidence were dismissed. During the pendency of these criminal proceedings, the relations between the parties have become. more strained. Will the defendant feel safe in. case she is now directed to join and live with her husband? The circumstances of the case negative this proposition and it is the duty of the Court to deny the restitution if it is inequitable to compel the wife to live with her husband. On this aspect, support can be had from the judgment reported as Raj Mohammed v. Saeeda Amina Begum, AIR 1976 Kar 200 . During the course of the judgment on this aspect, it was observed as under: "there is no absolute right in a husband to claim restitution of conjugal rights against his wife. Gross failure by the husband of the performance of the obligation which the marriage contract imposes on him for the benefit of the wife, might if properly proved, afford good grounds for refusing to him the assistance of the Court. It has to be borne in mind that the decision in a suit, for restitution of conjugal rights does not entirely depend upon the right of the husband. The Court should also considerwhether it would make it inequitable for it to compel the wife to live with her husband. There is no such rule which compels the Courts always to pass a decree in a suit for restitution of conjugal rights in favour of the husband. As long as there is no such rule, it would be just and reasonable for the Court to deny the said relief to the plaintiff if the surrounding circumstances show that it would be inequitable to do so. "on the basis of the evidence on record and the law laid down in the abovesaid judgment, it can safely be said that the institution of criminal cases and then- vigorous pursuit against the wife and her relations amounts to cruelty and raises a reasonable apprehension in the mind of the defendant that in case she is forced to live with her husband, her life will be in danger. In fact, she has reasonable and just cause to withdraw from the company of the plaintiff. ( 17 ) THE defendant was also justified in not sending any reply to the plaintiffs letter dated 5-11-1980. In fact, she has reasonable and just cause to withdraw from the company of the plaintiff. ( 17 ) THE defendant was also justified in not sending any reply to the plaintiffs letter dated 5-11-1980. In this letter, instead of requesting the defendant to join the matrimonial home, a severe warning was administered that in case she failed to abide by his orders, the consequences will be serious. In that situation, either the plaintiff would use force and in the case of resistance he would either land in jail or die as a sick person. The receipt of this letter by itself is a circumstance showing the stern attitude of the plaintiff which raised a reasonable apprehension in her mind that in case she returned to her matrimonial home, she will not be treated with respect. On the other hand, her life will be in danger, ( 18 ) AS a result of the above discussion, I see much force in the submissions of the learned Counsel for the appellant inasmuch as the oral as well as documentary evidence proved on record bring the case of the defendant within the definition of "cruelty" and the institution of the criminal cases against her and her relations further amounts to cruelty raising a reasonable apprehension in her mind that in case she is forced to join her husband, her life will be in danger. I am also of the opinion that the defendant-appellant had reasonable and just cause to withdraw from the company of her husband. I, therefore, accept the appeal, set aside the order of the First Appellate Court and restore the order of the learned Lower Court dismissing the suit for restitution of conjugal I rights.