Delhi District Court
Abdul Moin vs Mst. Rafia Bano on 13 March, 2014
IN THE COURT OF MS. SNIGDHA SARVARIA:LD CIVIL JUDGE:
(CENTRAL)05:TIS HAZARI COURTS:DELHI
Suit no. 125/2012
In the matter of
Abdul Moin
S/o Shri Abdul Majid
R/o 2064, Kucha Chellan,
Darya Ganj, New Delhi110002 .............plaintiff/petitioner
Versus
Mst. Rafia Bano
W/o Shri Abdul Moin
D/o Shri Mohd. Afaq Siddiqui
R/o House No. 95,
Chaubdari Mohalla, Akabari Gate,
behind Irfani Madarsa,
Lucknow (UP) ...........defendant/respondent
Date of Institution: 08.04.2010 Date of Reserving for Judgment: 13.03.2014 Date of Judgment : 13.03.2014 SUIT FOR RESTITUTION OF CONJUGAL RIGHTS EXPARTE JUDGMENT:
1. Vide this judgment, I shall dispose of a suit/petition for restitution of conjugal rights filed by the plaintiff against the defendant.
2. Brief facts of the case as per the plaintiff are that the petitioner is a Suit No. 125/2012 Page No. 1 of 17 permanent resident of Delhi, the petitioner belongs to highly respected family of Delhi. He has clean antecedents and has never been involved in any criminal activities. The marriage was duly solemnized between the petitioner and the respondent on 02.12.2006 at Lucknow according to the Muslim Rites and ceremonies. It is further submitted that after the marriage, the respondent came to her matrimonial home at House No. 2064, Kucha chellan, Darya Ganj, New Delhi, where the marriage was duly solemnized and both the parties lived together as wife and husband till 03.06.2009. Out of the said marriage wedlock one daughter named Kumari Zarrish Bano was born on 23.01.2008, who is alive and presently living with the respondent. Since the inception of the said marriage, the petitioner as well as his relations treated the respondent with utmost love and affection and gave her all the respect and dignity to the respondent. Infact the petitioner made his utmost, sincere and honest effort to ensure that the respondent does not feel any inconvenience, hardship or uncomfortably at her matrimonial home. The petitioner further made his best efforts to provide every affordable luxury to the respondent with the sole purpose of ensuring that the stay of the respondent at her matrimonial home is enjoyable, comfortable and Suit No. 125/2012 Page No. 2 of 17 without any tension or torture. It is further submitted that since the inception of the said marriage, the behaviour, conduct and attitude of the respondent towards the petitioner and his relations was very hostile, aggressive, arrogant and humilitative. It is further submitted that since the inception of the said marriage, the respondent and the petitioner were living at the aforesaid premises bearing No. 2064, Kucha Chellan, Darya Ganj, New Delhi, which is a joint family premises of the petitioner. Infact all the relations of the petitioner as well as the respondent were living at the said premises as a joint family, though the petitioner and the respondent were having separate and independent bedroom. However, since the day one of the said marriage, the respondent started demanding a separate accommodation. The petitioner on several occasion tried to explain and pursue the respondent that since the income of the petitioner is very limited and since the residential premises are having soaring prices and the value of the residential premises in Delhi have shot up tremendously, in view of the limited the financial condition of the petitioner, he is unable to arrange a separate accommodation. However, the petitioner repeatedly assured the respondent that as and when the financial condition of the petitioner improves, he shall make serious and Suit No. 125/2012 Page No. 3 of 17 sincere effort to have separate accommodation. However, the behaviour and conduct of the respondent towards the petitioner and his relations remained unchanged. It is further submitted that the respondent developed a very unfortunate habit of speaking quarrels with the petitioner as well as his other family relations on one pretext or another. On 26.01.2007, the respondent as usual demanded from the respondent that he should be provided a separate accommodation. However, the petitioner told the respondent that in view of the limited source of income the petitioner is not in a position to arrange a separate accommodation. However, the respondent picked up quarrel with the petitioner and his family members. She started openly threatening the petitioner of committing suicide by powering kerosene oil over her body, if a separate accommodation is not arranged by the petitioner. However, with great difficulty, the petitioner managed to convince the respondent that as and when the financial condition of the petitioner improves, he shall made his best efforts to arrange separate accommodation for her. It is further submitted that said behaviour and conduct of the respondent did not improve and she continued to harass, torture and blackmail the petitioner on one pretext or another. It is further Suit No. 125/2012 Page No. 4 of 17 submitted that on 23.01.2008, one daughter was born to the respondent. The petitioner born all the delivery expenses and provided best medical treatment to the respondent to the maximum extent as allowed by the financial resources of the petitioner. However, the respondent as well as her relations were not satisfied with the same and they demanded that the petitioner should arrange a separate accommodation as she is not in a position to live in a joint family happily and comfortably. However with great persuasion the petitioner succeeded in pursuing the respondent not to insist for a separate accommodation presently as the petitioner was facing acute financial condition. It is further submitted that despite the above fact, the relations of the respondent particularly his brother used to come to her matrimonial home and they indulge in inciting the respondent to pressurize the petitioner to have separate accommodation. It is further submitted that on 31.12.2008, the brother of the respondent came to her matrimonial home and the petitioner as well as his other relations treated him with utmost respect and dignity. However, after one hour of his stay at the matrimonial home of the respondent, the respondent started shouting that she be provided a separate accommodation and that she will not live at her matrimonial home Suit No. 125/2012 Page No. 5 of 17 any longer and shall shift to her parental house at Lucknow. However, the petitioner, his relations, as well as the respectables of the locality persuaded the respondent not indulge in such type of activities and wait for a separate accommodation till the financial condition of the petitioner improves. It is further submitted that on 03.06.2009, the respondent picked up a quarrel with the petitioner on a very triable issue. She started shouting, abusing and using highly unparliamentary language towards the petitioner and his family relations. The petitioner made his best efforts to pursue the respondent to control herself, but she became more aggressive, arrogant and started shouting and using abusive language. At about 5.30 P.M. on the same day, the respondent packed up all her gold ornaments, costly items and despite best efforts of the petitioner as well as his other family relations. The respondent informed the Local Police and within 5 minutes Local Police came at the premises of the petitioner. Before the Police Officials, the respondent categorically a refused to live with the petitioner and she started shouting uncontrollably. However the said police officials also tried to pursue the respondent not to indulge in such behaviour, but the behaviour and conduct of the respondent remained unchanged. Keeping in view, the aforesaid conduct of Suit No. 125/2012 Page No. 6 of 17 the respondent and her constant threats, the said police officials advised the petitioner to allow her to go to her parental home. Infact, reluctantly, the petitioner agreed and a not was prepared by the police officials of P.S. Chandni Mahal on the same date, when the respondent gave and writing that she is living her matrimonial home out of her on volition and that she will go to her parental home. The Jija of the respondent namely Shri Farid Khan, who had come to the said premises also incited the respondent and told the Police Officials, that both the parties cannot live together happily and comfortably. Accordingly, the police officials also advised the petitioner not to create any hindrance in her leaving the matrimonial home. Accordingly, the respondent gave a statement before the police official at P.S. Chandni Mahal, wherein she stated that she is leaving the matrimonial home out of her own volition alongwith the minor daughter. The said note was duly signed by the parties, Shri Abdul Farid Khan, the Jija of the respondent, Shri Abdul Moid, the elder brother of the petitioner as well as Doctor S.T. Hassain. It is further submitted that Since 03 062009 the respondents is living at her parental home in Lukhnow UP thus clearly, the respondent has deserted the petitioner without any reasonable excuse. On several occasions petition and his Suit No. 125/2012 Page No. 7 of 17 relatives visited Kanpur and tried to bring the respondents back to the matrimonial home but she refused. On 30032010 when petitioner had gone to Lukhnow to attend the marriage of his relative, the petitioner spotted the respondents as well as their minor daughter Kumari Zarrish Bano in the Market and tried to talk to her and to take the daughter in his lap but the respondents started shouting and criminal assaulting the petitioner. The crowed gathered and the respondent was told not to indulgence in such activities. The petitioner went to his place of stay in Lukhnow but within two hours the police officials came to the said place and picked the petitioner and was detailed for three days without presenting before the Magistrate or even registration of FIR and was later released on bail by special executive Magistrate. Since 03062009 respondent upon instigation upon her parent and brother has withdrawn from the society of the petitioner who has atmost love and affection towards the defendant. The respondent was treated will and lovingly by the petition and his family. the respondent has deprived the petitioner of matrimonial bless comfort and enjoyment to which the petitioner is legally entitled. She has failed to discharge her marital obligation. Thus clearly the petitioner is suffering incalcuble loss and injury which can not be Suit No. 125/2012 Page No. 8 of 17 compensated in money. The petition has no alternative but to file the present suit for restitution of conjugal rights.
3. On the other hand the defendant was duly served by way of publication in newspaper "Rashtriya Sahara" dt. 08052013, but none had appeared on behalf of the defendant, hence the defendant was proceeded exparte vide order dt. 29072013.
4. To prove his case, the plaintiff has examined himself as PW1. PW1 has produced his evidence by way of affidavit which is Ex. PW1/A. In his affidavit, the PW1 has reiterated the facts mentioned in the plaint and put reliance on the following documents:
i) The Nikahanama is Ex. PW1/1 and its English Translation is Ex. PW1/1A.
ii) Birth certificate dt. 26082013 is Ex. PW1/2.
iii) Copy of ration card is Mark A.
iv) Election I Card is Ex. PW1/4.
5. I have heard the counsel for the plaintiff and have gone through the record carefully.
6. The plaintiff has proved the nikahnaama as Ex. PW1/1 and its English translation as PW1/1A. The original birth certificate of the minor children is Ex. PW1/2. The election I card is Ex. PW1/4. Suit No. 125/2012 Page No. 9 of 17 Ration card is Mark A.
7. The matrimonial remedy of restitution of conjugal rights was made available to all the communities, including the Muslims, at an early period of British rule in India. The earliest Privy Council decision under Muslim Law goes back to the 1867. The remedy is available to both the parties. Thus, according to Tyabji, "Where either the husband or wife has, without lawful ground, withdrawn from the society of the other, or neglected to perform the obligations imposed by law or by the contract of marriage, the court may decree restitution of conjugal rights, and may put either party on terms securing to the other the enjoyment of his or her legal rights".
8. It is well settled that a Mohammedan marriage is not a sacrament, but a civil contract and a suit for restitution of conjugal rights is truly speaking a suit for enforcement of certain obligations arising out of that contract. Thus, a petition for restitution of conjugal rights is maintainable only if there is a valid marriage/nikah. The relief of restitution of conjugal rights is aimed at preserving the marriage.
9. Under all personal laws the requirement to grant a decree of restitution of conjugal rights is the same, which are as under:
(1) The withdrawal by the respondent from the society of the Suit No. 125/2012 Page No. 10 of 17 petitioner.
(2) The withdrawal is without any reasonable cause or excuse or lawful ground.
(3) There should be no other legal ground for refusal of the relief.
And (4) The court should be satisfied about the truth of the statement made in the petition.
If the respondent proves the followng then the decree of restitution of conjugal rights cannot be granted:
(a) A ground for relief in any matrimonial cause;
(b) a matrrimonial conduct other than the ones covered under (1) above, which are sufficiently grave and weighty;
(c ) an act, omission or conduct which makes it impossible for the respondent to live with the petitioner;
Apart from the aforesaid, muslim law recognises the following defences:
(a) cruelty by spouse or inlaws
(b) failure by the spouse to perform marital obligations and (c ) nonpayment of prompt dower by the husband.
10.The law in this regards is well settled and it has to be borne in mind that the decision in a suit for restitution of conjugal rights Suit No. 125/2012 Page No. 11 of 17 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 bring 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 plaintiff if the surrounding circumstances show that it would be inequitable to do so.
11.In Itwari v. AsghariAIR 1960 ALLAHABAD 684 (V 47 C 196), the law as regards restitution of conjugal rights where parties have married under the muslim law was explained as under:
6. A marriage between Mohammedans is a civil contract and a suit for restitution of conjugal rights is nothing more than an enforcement of the right to consortium under this contract. The Court assists the husband by an order compelling the wife to return to cohabitation 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).
But a decree for specific performance of a contract is an equitable relief and it is within the discretion of the Court to grant or refuse it in accordance with equitable principles. In Suit No. 125/2012 Page No. 12 of 17 Abdul Kadir's case ILR 8 All 149 (FB), it was held that in a suit for conjugal rights, the Courts in India shall function as mixed Courts of equity and be guided by principles of equity well established under English Jurisprudence. One of them is that the Court shall take into consideration the conduct of the person who asks for specific performance.
If the Court feels, on the evidence before it, that he has not come to the Court with clean hands or that his own conduct as a party has been unworthy, or his suit has been filed with ulterior motives and not in good faith, or that it would be unjust to compel the wife to live with him, it may refuse him assistance altogether. The Court will also be justified in refusing specific performance where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its nonperformance would involve no such hardship on the plaintiff.
12. In Raj Mohammad v. Saeeda AIR 1976 KARNATAKA 200, it was held as under:
6. Dealing with the kinds of defences which a wife under the Muslim Law can take in a suit for restitution of conjugal rights, the Judicial Committee of the Privy Council observed in Moonshee Buzloor Ruheem v. Shumsoonnissa Begum, (186667) 11 Moo Ind App 551 (PC), as follows :
"It seems to them clear, that if cruelty in a degree rendering it unsafe for the wife to return to her husband's dominion were established, the Court might refuse to send her back. It may be, too, that gross failure by the husband of the performance of the obligations 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. And, as their Lordships have already intimated, there may be cases in which the Court would qualify its interference by imposing terms on the husband. But all these are questions to be carefully considered and considered with some reference to Mohammedan Law."
In Anis Begum v. Muhammad Istafa Wali Khan, ILR Suit No. 125/2012 Page No. 13 of 17 55 All 743 = (AIR 1933 All 634) Sulaiman, C. J., observed as follows :
"Their Lordships of the Privy Council in the case of Mooshee Buzloor Ruheem v. Shumsoonnissa Begum, (186667) 11 Moo Ind App 551 (PC) observed that a suit for restitution of conjugal rights, though in the nature of a suit for specific performance is in reality a suit to enforce a right under the Muhammadan law and the Courts should have regard to the principles of Muhammadan law. The observation of their Lordships was directed to emphasising the point that Courts should not exercise their discretion in complete supersession of the Muhammadan Law, but that in exercise of their discretion they should refer to that law. But the principle was fully recognised that in passing a decree for the restitution of conjugal rights, the Court has power to take into account all the circumstances of the case and impose terms which it considers to be fair and reasonable."
The rule may, therefore, be restated as follows:
"There is no absolute right in a husband to claim restitution of conjugal rights against his wife unconditionally; the Courts have a discretion to make the decree conditional on the payment of her unpaid dower debt or to impose other suitable conditions considered just, fair and necessary in the circumstances of each case."
Proceeding further he observed at p. 772 as follows :
"I think that the wife is fully justified in refusing to go and live with her husband so long as there is no undertaking not to keep any mistress in the house."
After referring to the decision of the Privy Council mentioned above, Dhavan, J. in Itwari v. Asghari, (AIR 1960 All
684) observed as follows: "It follows, therefore, that in a suit for restitution of conjugal rights by a Muslim husband against the first wife after he has taken a second, if the Court after a review of the evidence feels that the circumstances reveal that in taking a second wife the husband has been guilty of such conduct as to make it inequitable for the Court to compel the first wife to live with him it will refuse relief."
Proceeding further, he observed :
Suit No. 125/2012 Page No. 14 of 17
"The onus today would be on the husband who takes a second wife to explain his action and prove that his taking a second wife involved no insult or cruelty to the first. For example, he may rebut the presumption of cruelty by proving that his second marriage took place at the suggestion of the first wife or reveal some other relevant circumstances which will disprove cruelty. But in the absence of a cogent explanation the Court will presume, under modern conditions, that the action of the husband in taking a second wife involved cruelty to the first and that it would be inequitable for the Court to compel her against her wishes to live with such a husband."
13. As discussed above, In Islam, marriage is considered both a social agreement and a legal contract. In modern times, the marriage contract is signed in the presence of an Islamic judge, imam, or trusted community elder who is familiar with Islamic Law. The process of signing the contract is usually a private affair, involving only the immediate families of the bride and groom. Marriage Contract Conditions Negotiating and signing the contract is a requirement of marriage under Islamic law, and certain conditions must be upheld in order for it to be binding and recognized.
Consent - Both the groom and the bride must consent to the marriage, verbally and in writing. This is done through a formal proposal of marriage (ijab) and acceptance of the proposal (qabul). A firsttime bride is usually represented in the contract negotiations by her Wali, a male guardian who looks out for her best interests. Suit No. 125/2012 Page No. 15 of 17 Even so, the bride must also express her willingness to enter into marriage. Consent cannot be obtained from those who are legally unable to give it, i.e. people who are incapacitated, minor children, and those who have physical or mental impairments which limit their capacity to understand and consent to a legal contract. Mahr - This word is often translated as "dowry" but is better expressed as "bridal gift." The bride has a right to receive a gift from the groom which remains her own property as security in the marriage. The gift is payable directly to the bride and remains her sole property, even in case of later divorce. The mahr can be cash, jewelry, property, or any other valuable asset. Either full payment or an agreedupon payment schedule is required at the time of contract signature. The mahr may also be deferred until termination of the marriage through death or divorce; in such an instance the unpaid mahr becomes a debt against the husband's estate. Witnesses - Two adult witnesses are required to verify the marriage contract.
Prenuptial Contract Conditions - Either the bride or the groom may submit contract conditions which, if agreed upon, become legallybinding conditions of marriage. Often such conditions include agreements about the country of the couple's residence, the wife's Suit No. 125/2012 Page No. 16 of 17 ability to continue her education or career life, or vistation with in laws. Any condition that is allowable in Islamic law is allowed to be entered, as long as both parties agree.
After Contract Signature After the contract is signed, a couple is legally married and enjoy all the rights and responsibilities of the marriage.
A person is entitled to a decree of restitution of conjugal rights when the other spouse has withdrawn from his society without any reasonable cause. The testimony of the petitioner who deposed as PW1 has remained unrebutted and nothing has come on record to disbelieve his version. Thus, the plaintiff is entitled to the decree of restitution of conjugal rights.
14.Relief:
In view of the foregoing discussion, a decree of restitution of conjugal rights is passed in favour of the petitioner and against the respondent. Costs of the petition is also awarded to the petitioner.
Decree sheet be prepared accordingly. File be consigned to the record room after due compliance.
Announced & signed in the ( Snigdha Sarvaria) open court on 13.03.2014. Civil Judge/Central05 Delhi Suit No. 125/2012 Page No. 17 of 17