Delhi District Court
Mohd. Amjad vs Ms. Mahjabeen on 6 September, 2013
1
IN THE COURT OF SHRI KAPIL KUMAR, CIVIL
JUDGE01 (WEST) TIS HAZARI COURTS, DELHI..
Unique ID No. 02401C0290832010
SUIT NO. 198/10
Date of Institution : 12.07.2010
Date of reservation of judgment : 06.09.2013
Date of pronouncement of Judgment : 06.09.2013
Mohd. Amjad
S/o Mohd. Muslim
R/o H.No. 358, Vikas Kunj
Vikas Nagar, Delhi59
............... Plaintiff
Vs.
Ms. Mahjabeen
W/o Mohd. Amjad
D/o Kamrul Huda Kasim @ Kasim Ali
R/o Plot No. C347
New No. CN394, Vikas Kunj
Vikas Nagar, Delhi110059.
............ Defendant
SUIT FOR RESTITUTION OF CONJUGAL RIGHTS
UNDER MUSLIM LAW
JUDGMENT
Case of the plaintiff
1. Plaintiff is the husband who states that nikah between Suit No.198/10 2 the parties was solemnized in Delhi on 17.8.2007 according to Muslim rites, customs and ceremonies. Further states that no issue is born out of this wedlock as the defendant never joined the matrimonial company of the plaintiff after the nikah as the 'Gauna Ceremony' was not performed due to the fault from the side of defendant.
2. Plaintiff further states that he sent several proposal for peforming 'Gauna Ceremony' but the defendant not joined the matrimonial company of the plaintiff. Further states that father of plaintiff and father of defendant used to do joint business of sale purchase of the properties. The father of defendant cheated with the father of plaintiff and the joint business of salepurchase of property was stopped and in respect of settlement of account a Panchayat was held on 04.4.2010 where it was decided that father of defendant will pay Rs.2 lacs to the father of plaintiff within two months as lumpsum amount.
3. Plaintiff further states that after sometime the intention of the father of defendant became dishonest and to grab the amount of Rs. 2 lacs, he sent anti social person namely, Binnu at the shop and house of father of plaintiff on 24.4.2010 to beat the father of plaintiff. On 28.4.2010 above named person Binnu alongwith four persons came at the house of father of plaintiff and Suit No.198/10 3 called the father of plaintiff and after that Binnu slapped the father of plaintiff and got the signatures on some blank papers forcefully and extended threats to forget Rs. 2 lacs.
4. Plaintiff further states that defendant filed a false complaint before Delhi Mahila Ayog against the plaintiff and his father wherein the plaintiff offered the defendant to join his matrimonial company but the defendant refused to join the company of plaintiff and without any reasonable cause made demand of divorce. Plaintiff further states that he alongwith his parents went to the house of the defendant and made proposal to perform ' Gauna Ceremony' but every time defendant and her parents postponed the same on one pretext or other. Plaintiff further states that on 12.5.2010 he also made a proposal before defendant to join her matrimonial house but she flatly refused to join the matrimonial home. Hence this suit.
5. By virtue of present suit plaintiff is praying for the relief that a decree of restitution of conjugal rights be passed in his favour thereby directing the defendant to join the matrimonial company of plaintiff. Further the parents of defendant be restrained from interfering in the matrimonial life of the plaintiff and defendant.
Suit No.198/10 4 Case of defendant
6. Written statement filed on behalf of defendant wherein she has stated that the plaintiff has filed the present suit to take advantage of his own wrongs which cannot be permitted in law and as such it deserves to be dismissed. Defendant further states that she has filed a petition for dissolution of marriage in Family Court, Motihari, Bihar and has also filed a criminal complaint against the plaintiff U/s 498A/406/34 IPC and Section 3 & 4 of Prevention of Dowry Act, pending in the court of SDJM, Sikrahana, Bihar and as such the question of restitution of conjugal rights does not arise at all and as such the present suit is liable to be dismissed.
7. Defendant further submits that the Nikahnama was not signed by her nor the nikah was performed with her consent and as such the same is not binding upon her. Further states that since the ceremony of ' Rukshati/Gauna' never took place therefore the defendant never joined the plaintiff as husband and the marriage was not consummated. Further states that she on attaining the majority has filed the petition at Family Court at Motihari, Bihar seeking dissolution of marriage. Further states that present suit is just an arm twisting technique to extort money from the parents of defendant and not to return the amount which Suit No.198/10 5 the father of plaintiff received from father of defendant.
8. Defendant denied that the plaintiff or his parents sent several proposals to perform 'Gauna Ceremony' Further states that the alleged decision of Panchayat as to the liability of parents of defendant to pay Rs.2 lacs to the father of plaintiff is just a concocted story. Further states that the fact is that the father of plaintiff demanded Rs.5 lacs for the purchase of plot in the name of plaintiff for doing some business, which the father of defendant has given to father of plaintiff on 15.7.2008 but latter on the defendant's family realized that the father of plaintiff neither purchased any plot nor started any business in the name of plaintiff and thus by way of fraud had taken Rs.5 lacs from the father of defendant. Further states that till date this amount has not been returned by the father of plaintiff despite several requests and whenever the father of defendant raised this issue the father of plaintiff replied ' agar apni ladki ki rukshati karni hai to ek gadi aur ek lakh rupye dene honge.' Defendant denied the averment of the plaintiff as to the beating of father of plaintiff by Sh. Binnu, alleged associate of father of defendant. Further states that the present suit is frivolous and is liable to be dismissed.
9. Replication filed on behalf of plaintiff wherein he denied all the contentions of defendant and reiterated his stand as Suit No.198/10 6 taken by him in the plaint.
10. Vide Order dated 30.8.2011 following issues were framed by the Ld. Predecessor of this court:
1. Whether the plaintiff is entitled to the restitution of conjugal rights as prayed for ? OPP.
2. Relief.
11. To prove his case plaintiff examined two witnesses himself as PW1 and Sh. Kari Mohd. Salamuddin as PW2. In their testimonies following documents were exhibited :
" Nikahnama as Ex. PW 1/A; copy of ration card as Ex. PW 1/B; photocopy of panchayat Faisala dated 04.4.2010 as Mark P1; written complaint as Mark P2 and copy of summon from Mahila Ayog as P3. "
12. Defendant examined herself as DW1. No document was exhibited in her testimony.
13. I have heard arguments advanced by Ld. Counsels and also considered the written arguments filed on behalf of plaintiff and carefully perused the record.
Suit No.198/10 7
14. My issuewise findings are as under :
ISSUE No. 1
Whether the plaintiff is entitled to the restitution of conjugal rights as prayed for ? OPP. The onus to prove this issue was upon the plaintiff.
15. Ld. counsel for plaintiff argued that defendant without any reasonable cause not joined the company of plaintiff even after nikah and as such defendant is under obligation to join the matrimonial company of plaintiff. Per contra, Ld. counsel for defendant argued that at the time of nikah defendant was minor and after attaining the majority she has filed a case for divorce at her native place Bihar. Ld. counsel for defendant further argued that marriage has not been consummated and it will be unjust if the defendant be forced to live with the plaintiff to whom she does not want to live. Ld. counsel for defendant further vehemently argued that the relations between the families of parties are strained and as such mental cruelty has been committed upon the defendant and accordingly the present suit is liable to be dismissed.
16. Admittedly the marriage has not been consummated as the defendant never lived with the plaintiff. It is also admitted that till date the ceremony of rukshati/gauna ceremony has not Suit No.198/10 8 been performed. Defendant is pursuing her B.Sc, Agriculture from Maradhwara Agricultural University, Maharashtra. Plaintiff is 12th standard pass. Plaintiff and defendant were in 9th standard when the nikah was performed.
17. From the pleadings of parties it is clear that the relations between the families of parties are strained due to monetary considerations. Plaintiff himself has stated that on 24.4.2010 the father of defendant sent anti social element namely, Binnu to beat the father of plaintiff. It is further mentioned in the plaint that on 28.4.2010 Binnu alongwith four other persons came at the house of plaintiff and slapped the father of plaintiff and extended threats to forget Rs.2 lacs , which allegedly the father of defendant undertook to pay to father of plaintiff. On the other hand it is stated on behalf of defendant that the father of plaintiff demanded Rs.5 lacs from the father of defendant for doing some business which was given by the father of defendant but latter on father of plaintiff refused to return that amount and threatened the father of defendant by saying that , " agar apni ladki ki rukshati karni hai to ek gaari or ek lakh rupiye aur dene honge.'' Though PW1 and DW1 denied the counter allegations put forth in the respective pleadings yet it is patently clear from the pleadings that the families of parties in the present suit are going through the Suit No.198/10 9 strained relations. Marriage is a sacrosanct act which unites not only two individuals but two families also. If the families of respective parties are against each other to the extent that the allegations as to the physical assault are put forth then in such a condition a bride cannot be expected to live with peace with groom's family. As per well known custom the bride has to live in groom's house and if the parents of groom are against the parents of bride then the repercussions also fall upon the bride. To force a girl to live in such a situation is against the equity and justice. It will be a barbaric for a girl to force to live in the groom's house in these circumstances as there is an apprehension of violence or any other act of such a nature as to the endanger personal health and safety of defendant which is a reasonable ground for refusal to join the matrimonial company of plaintiff. ( Ref. : Khurshed Begum v. Abdul Rashid AIR 1927 Nagpur 139 and Shahila Banu v. Gulam Mustafa AIR 1971 Bombay 166)
18. Here reliance could be placed upon the following observations of Amberson Marten, Kt., C.J. in ( 1927) 29 Bom. LR 332 titled as Bai Jivi vs Narsingh Lalbhai :
.." The relief of granting restitution of conjugal rights in a husband suit means ordering an unwilling wife to go to her Suit No.198/10 10 husband. This, in my view, was rightly criticized as barbarous by Lord Harschel in Russell V. Russel, (1897). It is a relic of ancient times when slavery or quasi slavery was regarded as natural. This is particularly so after the Constitution of India came into force, which guarantees personal liberties and equality of status and opportunity to men and women alike and further confers powers on the State to make special provisions for their protection and safeguard. It is now , difficult to appreciate this compulsion on an Indian Wife when she has a reasonable apprehension that her life with her husband is impossible or dangerous to her".
Further, the High Court of Karnatka in ILR 1976 KAR 1008, titled as Raj Mohammad Vs. Saeeda Amina Begum has held that :
Suit No.198/10 11
" 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 consider whether it would make it inequitable for it to compel the wife to live with her husband. Our notions of law in that regard have to be altered in such a way as to being them in conformity with the modern social conditions. It is not shown that there is any 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 wife if the surrounding circumstances show that it would be inequitable to do so".
Here reference to the observation of Bombay High Court in (1885) ILR 9 Bom 529 title as Dadaji Bhikaji Vs. Suit No.198/10 12 Rukhmabai is relevant The case pertained to a suit for restitution of conjugal rights under Hindu law. The Bombay High Court through Pinhey, J. refused to grant the decree for restitution for conjugal rights and held in para 2 that :
..." It seems to me that it would be a barbarous, a cruel, a revolting thing to do to compel a young lady under those circumstances to go to a man whom she dislikes, in order that he may cohabit with her against her will; and I am of opinion that neither the law nor the practice of our Courts either justified my making such an order, or even justifies the plaintiff in maintaining the present suit".
While discussing the remedy of restitution of conjugal rights in a general sense and not in relation to Hindu Law as such, he writes :
..." I have looked through the reported decisions of the Courts in England and of the Court's in India; but I cannot find one that covers the ground covered by the facts of this case. There is not an instance, that I know of, Suit No.198/10 13 in which a Court has compelled a woman, who has gone through the religious ceremony of marriage with a man, to allow that man to consummate the marriage against her will". Hon'ble Delhi High Court in the case titled as Smt. Sahina Parveen Vs. Mohd. Shakeel AIR 1987, Delhi 210 observed as follows :
"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 Vs. 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 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 Suit No.198/10 14 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."
19. PW1/plaintiff admitted in the crossexamination that the defendant filed a complaint before Delhi Mahila Ayog, Inderprastha Estate, New Delhi against him and his father. He further admitted that the defendant has filed a case for divorce against him. DW1 further deposed that she has filed a case under Section 498A against the plaintiff. From these litigations it is clear that the defendant does not want to live with the plaintiff. In these circumstances defendant cannot be forced to live with the plaintiff as wife and more so when the marriage between the parties is not consummated till today.
In view of the above discussion, plaintiff is not entitled to decree of restitution of conjugal rights.
Issue is decided in favour of defendant and against the plaintiff.
Suit No.198/10 15
20. Relief.
In view of findings on Issue no.1 the suit is hereby dismissed. No order as to cost.
Decree Sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
Announced in the open court ( Kapil Kumar ) today on 06.9.2013 Civil Judge01(West)/Delhi Suit No.198/10