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2018 DIGILAW 305 (RAJ)

Gulnaz w/o Shri Jafarullah Khan v. Jafarullah s/o Shri Ammenullah Khan

2018-01-23

G.R.MOOLCHANDANI, PRADEEP NANDRAJOG

body2018
JUDGMENT : G.R. Moolchandani, J. Appellant Smt. Gulnaz has assailed findings of court below passed by Family Court, Tonk on 21.6.2013 in Civil Suit No. 9/2013 (75/2009), whereby Family Court, Tonk has decreed the petition for restitution of conjugal rights filed by the respondent. 2. Heard rival submissions, learned counsel for the petitioner has contended that appellant was maltreated and beaten by her respondent husband and was ousted from the house and compelled to seek shelter in her parental house alongwith two small children, appellant has launched action against her respondent husband and a case u/s 498A coupled with sec. 406 of IPC is pending before the Court of Chief Judicial Magistrate, Tonk. Respondent has got an unpleasant temperament, he has given several beatings and abuses to the appellant severally, so the appellant cannot be compelled to join the matrimonial company of her husband, the court below, ignoring the evidence, has passed the judgment impugned, which is not sustainable in the eye of law, so it be quashed. 3. Learned counsel for the respondent Jafarullah has argued that behavior of the appellant is not amicable, she has falsely lodged alleged FIR against the respondent and a delay of six months is there in lodging the alleged FIR, which discloses that appellant has put in motion unlawful proceedings falsely, respondent is prepared to keep and maintain her alongwith his children, there is no infirmity in the findings of the court below, so the appeal be dismissed. 4. Heard both the sides and perused the record and examined the judgment impugned. 5. 4. Heard both the sides and perused the record and examined the judgment impugned. 5. Perusal of record shows that appellant/non-petitioner has refuted the allegations of desertion and has categorically pleaded that her husband Jafarullah had given beatings to appellant Gulnaz severally and demanded dowry and also passed sarcastic taunts by alleging to bring less dowry and demanded money alongwith motorcycle, tv, fridge, washing machine and abandoned the appellant to her parental house at tonk and did not render necessary maintenance money and amenities to the appellant and her children, it has also pleaded that while on 19.11.2007, the appellant was given thrashing, she lodged a report with Mahila thana, Gandhinagar, Jaipur, her medical examination was also conducted and on 20.11.2007 on intervention of family members, a compromise was made, while the respondent executed a compromise and assured that he will not repeat atrocity and will also not demand dowry but after one month to the compromise, respondent again gave severe beatings to the appellant and left her alongwith her minor children at the house of her parents at tonk in June 2008, respondent ousted the appellant after giving beatings and on 19.1.2009 appellant lodged a case against respondent for offences punishable u/s 498A and 406 of IPC and said case being Case No.159/2005 is sub-judice before the Court of Chief Judicial Magistrate, Tonk. 6. Evaluation of evidence reveals that in evidence respondent Jafarullah has admitted that Gulnaz had filed a case in January 2009 against the respondent with allegations of cruelty and demand of dowry. 7. Cross-examination of this witness is important since he has admitted that a compromise had taken place on 20.11.2007 with her wife at Mahila thana, Gandhi Nagar, Jaipur and has admitted that prior to this case, his wife had filed of a case u/s 498A, 406 of IPC against the respondent and a case for maintenance was also filed by the appellant, he has further stated that he did not bear, expenses of his kids’ school fee, books and dress borne at tonk, he has also admitted that he is unable to bear expenses of his wife and his children and those were being borne by his parents and brother. 8. 8. DW1 Gulnaz has corroborated pleadings, written in her reply, she has also stated that on 19.11.2007 she had lodged a report against her husband at Mahila thana, Gandhi Nagar, Jaipur, which were later compromised and her husband ousted her from the house in the month of June 2008, since then she is residing with her mother at tonk, she has also stated that her case relating to sec. 125 of CrPC and 498A, 406 of IPC are pending against her respondent-husband, she has further stated that she apprehends danger to her life and lives of her kids from Jafarullah. 9. Corroborating Exhibits-A1 to A16 she has stated that since June 2008 her husband and in-laws never came to fetch her nor they are paying any maintenance amount to her. She has been put to an interrogatory that her “mental status was not well”, which has been declined by this witness, she has further said that all her deliveries have taken place, at her parental house. 10. Perusal of Exhibit-A1 establishes that appellant-complainant Smt. Gulnaz lodged FIR No.31/2009 on 23.1.2009 at Police Station Kotwali tonk against her husband Jafarullah and his family members for the offences punishable u/s 498A and 406 of IPC and charge-sheet No.36/2009 dt 19.2.2009 has been filed against her husband Jafarullah son of Ammenullah for the offences punishable u/s 498A and 406 of IPC. Exhibit-A3 discloses that Jafarullah, respondent, was arrested against the said FIR on 13.2.2009, Exhibit-A4 copy of the petition seeking maintenance, also discloses that appellant Gulnaz has filed an application seeking grant of maintenance against Jafarullah. Exhibits-A5 and A6 reveals that a compromise was earlier arrived at between the couple appellant and Jafarullah since he had assured that he will pay rupees three thousand per month, which would be credited in her bank account and will also pay rupees one thousand five hundred towards her house-rent and would bear expenditure of her kids education. 11. Exhibits-A5 and A6 reveals that a compromise was earlier arrived at between the couple appellant and Jafarullah since he had assured that he will pay rupees three thousand per month, which would be credited in her bank account and will also pay rupees one thousand five hundred towards her house-rent and would bear expenditure of her kids education. 11. Considering aforesaid, it is evident that respondent Jafarullah has himself admitted regarding pendency of criminal case pertaining to cruelty u/s 498A and 406 of IPC and a case in respect of demand of maintenance, Jafarullah has asserted that his parents and brother borne expenditure of his wife and kids for a some of time, whereas he had given an undertaking at the time of compromise, when a criminal FIR was lodged at Mahila thana, Gandhi Nagar, Jaipur, that he will pay sustenance amount and expenses for his kids, which have obviously not been paid. 12. Scrutiny of the evidence reveals that appellant was maltreated and beaten at the place of her husband and she has not been given adequate sustenance amount. Respondent Jafarullah has himself admitted that cases pertaining to cruelty and demand of maintenance are sub-judice against him, he has himself asserted that expenditure of her wife and kids were borne by his parents and brother and he is not capable to bear the same, even he has failed to comply with the conditions mutually agreed vide Exhibit-A6. 13. Husband is duty bound to render security, amity and dignity to her she spouse, which respondent Jafarullah has obviously failed to provide, a women suspecting threat to her body and dignity cannot be forced to join marital companionship, in view of the evidence, it is evident that appellant has lawfully proved her reason to stay away from the consortium and companionship to her respondent husband. 14. Therefore, view taken by the learned trial court deserves to be set aside. As such, the judgment and decree impugned are hereby quashed and set aside. 15. Accordingly, the instant appeal is allowed. 16. No cost.