Bench:
S Dhavan
Appellant:
Itwari
Respondent:
Smt. Asghari And Ors.
Issue:
I) Whether the appeal is maintainable or not?
II) Whether the husband has been guilty of cruelty?
III) Whether the suit filed by husband for restitution of conjugal rights only as a counter-blast to the wife's claim for maintenance under Section 488 CrPc?
Facts
- This is an appeal of a Muslim spouse against the choice of the learned District Judge, excusing his suit forrestitution of conjugal rights against his first wife who wouldn't get back to him after he had taken a second wife and blamed him for remorselessness to her.
- The plaintiff was married to the defendant, Smt. Asghari about the year 1950 and lived with her for quite a while. At that point things turned out badly and the wife at last left him to live with her parents, however he didn’t try to finda way to bring her back and wedded another lady.
- The first wife who is a respondent filed an application for maintenance under Section 488 Cr. P. C. Thereupon, the husband filed a suit against her for restitution of conjugal rights.
- It was alleged that she had been turned out by her husband who had formed an illicit union with another woman whom he subsequently married. She alleged that she is being accused of cruelty by him.
- The learned Munsif, decreed the husband's suit and also passed an orderdirecting respondent’s father and brother not to prevent her from going back to him. The Trial Court decreed the suit while the Appellate Court reversed the said decree.
- The matter was then taken to the Allahabad High Court in the second appeal.
Appellant’s Contentions
- The fact that was raised the husband had taken a second wife,Smt. Asghari had endured discriminatory treatment at his hands, and was impacted by the husband's behaviour, that he had not required his second wife to live in hid house with her.
- The view that if the wife felt abused, by her better half's second marriage she ought to have acquired an announcement for dissolution of marriage and communicated that she had not done as such, consequently receiving the odd and conflicting perspective that the husband's direct in requiring a subsequent wife is a decent ground for the primary wife to sue for disintegration of her marriage and shut down every one of the privileges of the husband yet no ground for challenging the husband's suit for affirmation of similar rights under a similar marriage.
- The mere fact that the husband had taken a second wife is no proof of cruelty as every Muslim has the right to take several wives up to a maximum of four.
Respondent’s Contentions
- She had been turned out by her better half who had shaped an unlawful association with another lady whom he along these lines wedded. She affirmed that he had beaten her, denied her of her adornments and accordingly caused her physical and mental agony. He had additionally not paid her dower.
- Spouse recorded the suit for restitution of conjugal rights just as a counter-impact to the wife's case for maintenance under Section 488 CrPC.
- After the spouse had left him and been living with her parents for such many years, he didn’t try to finda wayto get her back and that his long quietness meant that he never truly cared for her.
Judgment
The Court held that the appeal had filed and was thus dismissed. Considering the fact and circumstances of the case, there was no order as to costs.
Relevant Paragraphs
In para 6, A marriage between Mohammedans is a civil contract and a suit for restitution of conjugal rights is just a requirement of the privilege to consortium under this agreement. The Court helps the husband by a request convincing the wife to get back to dwelling together with the husband. "Disobedience to the order of the Court would be enforceable by imprisonment of the wife or attachment of her property, or both". Moonshee Buzloor Ruheem v. Shumsoonissa Begum, 11 Moo Ind App 551 (609). Abdul Kadir v. Salima, ILR 8 All 149 (FB).
Likewise, If the Court feels, on the basis of evidence before it, that he has not gone to the Court with clean hands or that his own direct as a gathering has been shameful, or his suit has been recorded with ulterior intentions and not in accordance with some basic honesty, or that it is crooked to force the wife to live with him, it might decline him help altogether. The Court will likewise be supported in rejecting explicit execution where the presentation of the contract would include some difficulty.
Para 8, The husband in the current case stands firm on the privilege of each Muslim under his personal law to have a several wives all at once up to a limit of four. He fights that if the first wife is allowed to leave the husband only in light of the fact that he has required a second, this would be a virtual denial of his right. It is important to look at this contention.
Para 9, The privilege to four wives seems to have been qualified by a 'superior not' guidance, and husbands were charged to confine themselves to one wife in the event that they couldn't be unbiased between a several wives - an unthinkable condition as per to a several Muslim legal advisers, who depend on it for their contention that Muslim Law in practice discourages polygamy.
Para 10, A Muslim has the undisputed lawful right to take upwards of four spouses all at once. Yet, it doesn't adhere to that Muslim Law in India gives no privilege to the primary spouse against a husband who requires a subsequent wife, or that this law delivers her powerless when confronted with the possibility of imparting her significant other's consortium to another lady. In India, a Muslim spouse can separate from her significant other, under his designated power in case of his requiring a subsequent wife, Badu Mia v. Badrannessa, 40 Ind Cas 803: (AIR 1919 Cal 511 (2)).
In para 10 again, If Muslim law had respected a polygamous husband's entitlement to consortium with the primary wife as fundamental and inviolate, it would have restricted such specifications by the wife as against Muslim public strategy. In any case, it has done 'nothing of the sort. On the opposite Muslim law has given upon the wife's specified option to break down her marriage on her significant other requiring a second wife a power superseding the holiness of the main marriage itself.
Para 11, A Muslim husband has the legitimate right to take a second wife even while the primary marriage remains alive, yet on the off chance that he does as such, and looks for the help of the Civil Court to force the first wife to live with him against her desires on torment of extreme punishments including connection of property, she is qualified for bring up the issue whether the court, as a court of value, should constrain her to submit to co-residence with such a husband. All things considered the conditions in which his second marriage occurred are applicable and material in choosing whether his lead in requiring a second wife was in itself a demonstration of brutality to the first.
Para 15, Today Muslim woman move in society, and it is impossible for any Indian husband with several wives to cart all of them around. He must select one among them to share his social life, thus making, impartial treatment in polygamy virtually impossible-under modern conditions.
Para 16, Mr. Kazmi depended on a perception of the late Sir Din Shah Mulla in his Principles of Mohammedan Law, fourteenth release page 246,
"cruelty, when it is of such a character as to render it unsafe for the wife to return to her dominion, is a valid defence".
Para 18, Even without palatable verification of the spouse's mercilessness, the Court won't pass a declaration for compensation for the husband if, on the proof, it feels that the conditions are to such an extent that it will be low and unjust to constrain her to live with him. In Hamid Hussain v. Kubra Begum, ILR 40 All 332: (AIR 1918 All 235), a Division Bench of this Court excused a spouse's petition for compensation on the ground that the gatherings were on the most noticeably awful of terms, that the genuine justification the suit was the husband's longing to acquire ownership of the wife's property and the Court was of the assessment that by a re-visitation of her better half's authority the wife's wellbeing and security would be jeopardized however there was no acceptable proof of actual remorselessness.
Para 19, These standards apply to the current case. The lower appellate court has tracked down that the litigant never truly focused on his first spouse and recorded his suit for compensation just to crush her application for maintenance. In the conditions, his suit was mala fide and appropriately dismissed.
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