Karnataka High Court
Vakkal Haji Attaur Raheman vs Mariam W/O Vakkal Haji Attarur Raheman on 11 October, 2017
Bench: L.Narayana Swamy, H.B.Prabhakara Sastry
MFA No.25652/2011
C/w MFA No.25599/2011
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 11th DAY OF OCTOBER, 2017
PRESENT
THE HON'BLE Mr. JUSTICE L.NARAYANA SWAMY
AND
THE HON'BLE Dr. JUSTICE H. B. PRABHAKARA SASTRY
MFA No.25652 OF 2011 [FC]
C/W
MFA No.25599/2011
MFA NO.25652/2011
BETWEEN:
SRI VAKKAL HAJI ATTAUR RAHEMAN,
AGE 31 YEARS, OCC: BUSINESS,
R/O. 103, CASABLANCO NORRIS ROAD,
SHANTI NAGAR, BANGALORE - 560001
...APPELLANT
(BY SRI. MADANMOHAN M. KHANNUR,
SRI S.H.DODDAMANI & SRI S.K.PATIL, ADVS.)
AND:
SMT. MARIAM W/O. VAKKAL HAJI ATTARUR RAHEMAN,
AGE 30 YEARS, OCC: HOUSEHOLD WORK,
R/O. C/O. MOHAMMAD SADDIQUE PATEL,
B.C. NO.22 FORT, ARSENAL ROAD, FORT,
BELGAUM - 590016.
...RESPONDENT
(BY SRI. RAMACHANDRA A. MALI, ADV.)
MFA No.25652/2011
C/w MFA No.25599/2011
2
THIS APPEAL IS FILED UNDER SECTION 19(1) OF
FAMILY COURTS ACT, 1988, AGAINST THE JUDGMENT AND
DECREE DATED 29.10.2011 PASSED IN O.S.NO.16/2009 ON
THE FILE OF THE JUDGE, FAMILY COURT, BELGAUM, AT
BELGAUM, DISMISSING THE SUIT FILED FOR RESTITUTION
OF CONJUGAL RIGHTS.
MFA NO.25599/2011
BETWEEN:
SRI VAKKAL HAJI ATTAUR RAHEMAN,
AGE 33 YEARS, OCC: BUSINESS,
R/O. 103, CASABLANCO NORRIS ROAD,
SHANTI NAGAR, BANGALORE - 560001
...APPELLANT
(BY SRI. MADANMOHAN M. KHANNUR,
SRI S.H.DODDAMANI & SRI S.K.PATIL,
SRI V.P.KULKARNI,
SMT. SARITA H. DODDAMANI, ADVS.)
AND:
SMT. MARIAM W/O. VAKKAL HAJI ATTARUR RAHEMAN,
AGE 32 YEARS, OCC: HOUSEHOLD WORK,
R/O. C/O. MOHAMMAD SADDIQUE PATEL,
B.C. NO.22 FORT, ARSENAL ROAD, FORT,
BELGAUM - 590016.
...RESPONDENT
(BY SRI. RAMACHANDRA A. MALI, ADV.)
THIS APPEAL IS FILED UNDER SECTION 19(1) OF
FAMILY COURTS ACT, 1988, AGAINST THE JUDGMENT AND
DECREE DATED 29.10.2011 PASSED IN O.S.NO.06/2008 ON
THE FILE OF THE JUDGE, FAMILY COURT, BELGAUM,
MFA No.25652/2011
C/w MFA No.25599/2011
3
DECREEING THE SUIT FILED FOR THE DISSOLUTION OF
MARRIAGE.
THESE APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT COMING ON FOR
PRONOUNCEMENT THIS DAY, DR. H.B.PRABHAKARA
SASTRY, J., DELIVERED THE FOLLOWING:
COMMON JUDGMENT
The appellant in both these appeals are the very
same person who was the plaintiff in O.S.No.16/2009 and
defendant in O.S.No.6/2008 in the Court of the Judge,
Family Court, Belgaum (henceforth for brevity referred to
as 'the Family Court'). He had filed a suit in the family
Court seeking restitution of conjugal rights in
O.S.No.16/2009 against his wife, the respondent herein.
The said respondent-wife also had instituted an original
suit in the family Court in O.S.No.6/2008 seeking
dissolution of her marriage with the appellant herein. The
family Court by its common judgment and decree dated
29.10.2011 decreed O.S.No.6/2008 passing the decree of
divorce of the marriage between the parties said to have
been solemnised on 15.10.2000 and the suit of the
MFA No.25652/2011
C/w MFA No.25599/2011
4
husband in O.S.No.16/2009 was dismissed. It is against
those judgment and decrees, the appellant-husband has
preferred both these appeals.
2. In his memorandum of appeals, the appellant
has taken a contention that the respondent-wife had not
led any independent witness to substantiate her allegation
regarding cruelty. She further failed to establish that the
appellant was assaulting her and had made her life
miserable by cruelty which is contemplated under Section
2 (viii) of the Dissolution of Muslim Marriages Act. He has
further taken a contention that though he was ready and
willing to receive his wife, the respondent-wife refused to
come over to Bengaluru and to lead marital life with him.
He has further stated that the family Court has failed to
notice that he had not come to Belgaum on 13.01.2007
since he was admitted at Hindupura Government
Hospital, Andra Pradesh on that day, as could be seen
from Ex.P-1, still it entered an erroneous finding. With
this, he has prayed for allowing the appeals by setting
MFA No.25652/2011
C/w MFA No.25599/2011
5
aside the judgment and decrees under appeals and to
allow his original suit O.S.No.16/2009.
3. Both the parties are represented by their
learned counsels. The lower Court records were called for
and the same are placed before this Court.
4. Heard the arguments from both the side,
perused the materials placed before us.
5. For the sake of convenience, the appellant in
these appeals would be referred to as 'the husband' and
the respondent herein as 'the wife' here afterwards.
6. The summary of the case of 'the wife' in her
suit in O.S.No.6/2008 which was filed under Section
2(viii) (a) (d) & (e) of the Dissolution of the Muslim
Marriage Act, 1939 (henceforth for brevity referred to as
'the Act') is that, she was legally wedded wife of 'the
husband' (appellant herein), whose marriage was
solemnised as per the Muslim rituals and customs on
15.10.2000 at Qatar. Her parents had spent huge amount
MFA No.25652/2011
C/w MFA No.25599/2011
6
to perform their marriage and a substantial quantum of
gold and cash in the form of dowry was also given to her
husband. For about 6 months after their marriage, they
were leading happy marital life and thereafter, 'the
husband' started ill-treating and manhandling her. He
was joined in such acts by his family members also. He
also sold golden ornaments worth `8,00,000/- given to her
at the time of her marriage to fulfill his luxurious life. He
was treating her as a maid servant knowing fully well that
she was from a royal family. From December 2006, he also
started manhandling and abusing her. He further
demanded an additional dowry of `10,00,000/- and in
that regard to blackmail her, he took away their two
children with him, whose custody she has to ultimately
got through the intervention of the police. He was also not
permitting her to practice her religious rights which all
have resulted in she suffering by the cruelty of her
husband.
MFA No.25652/2011
C/w MFA No.25599/2011
7
7. The summary of the case of 'the husband' in
family Court was that, his marriage with 'the wife'
(respondent herein) said to have been solemnised at Qatar
on 15.10.2000 and they have begotten two children out of
the marital life was an admitted fact. However, 'the
husband' denied the allegation of his wife that her parents
had spent huge amount to perform their marriage and
that he was also given with huge amount of cash and gold
in the form of dowry. He specifically denied that he had
treated his wife with cruelty and that he had prevented
her from practicing her religious rights. On the other
hand, he alleged that his wife was not interested to reside
jointly with his other family members and was always
creating difference of opinion among the family members.
She was also insisting him to establish a separate
residence for them. He further stated that in order to
enlarge his business, he had purchased lands out of his
own funds at Chitradurga district, however, the same was
purchased in the name of the mother of his wife. He also
MFA No.25652/2011
C/w MFA No.25599/2011
8
stated that his wife has been staying in her parents house
and is not willing and desirous of joining him. On the
contrary, she filed a criminal case in the Court of Judicial
Magistrate First Class - IV Court, Belgaum in Crl. Misc.
No.6/2007 falsely accusing him of demanding additional
dowry and practicing mental and physical harassment
upon her and also alleged that he had kidnapped their two
children. With this, he had prayed for an order of
restitution of conjugal rights against his wife.
8. The Family Court has framed the following
issues;
ISSUES IN O.S.NO.6/2008
1. Whether the plaintiff proves that the
defendant habitually assaulted her or
made her life miserable by cruelty of
conduct even if such conduct does not
amount to physical ill-treatment/
2. Whether the plaintiff proves that the
defendant has disposed of her golden
MFA No.25652/2011
C/w MFA No.25599/2011
9
ornaments worth of `8,00,000/- given
during her marriage.
3. Whether the plaintiff proves that the
defendant obstructed her in observance of
her religious profession or practice?
4. Whether the suit of plaintiff is
maintainable?
5. Whether this Court has jurisdiction to try
the suit?
6. To what relief the plaintiff is entitled?
7. What decree or order?
Issue Nos.4 and 5 are set down as
preliminary issues.
ISSUES IN O.S.NO.16/2009
1. Whether the plaintiff proves that the
defendant without lawful cause ceases to co-
habit with him who is her husband ?
2. Whether the plaintiff is entitled for decree for
restitution of conjugal rights?
3. What decree or order?
It answered the above Issues as below:
MFA No.25652/2011
C/w MFA No.25599/2011
10
In O.S.No.6/2008
Issue No.1 : In the affirmative
Issue No.2 : In the affirmative
Issue No.3 : In the affirmative
Issue No.6 : In the affirmative.
In O.S.No.16/2009
Issue No.1 : In the negative
Issue No.2 : In the negative.
Issue No.7 in O.S.No.6/2008 and Issue No.3 in
O.S.No.16/2009 as per the final order.
With these findings, the family Court decreed the
suit of 'the wife' and dissolved the marriage of the parties
which was solemnised on 15.10.2000. Further, it
dismissed the suit of the husband filed seeking restitution
of conjugal rights. It is against the said judgment and
decrees, the husband has preferred both these appeals.
9. In the light of the above, the points that arise
for our consideration are ;
(i) Whether the finding of the family
Court holding that 'the wife' has proved that
her husband has subjected her to cruelty and
MFA No.25652/2011
C/w MFA No.25599/2011
11
thus she deserves dissolution of marriage
solemnised with 'the husband' on 15.10.2000
is erroneous?
(ii) Whether the finding of the family
Court that 'the husband' does not deserve the
decree for restitution of conjugal rights is
erroneous ?
10. The learned counsel for the appellant in his
argument reiterated the contentions taken up by the
appellant in his memorandum of appeals. He further
submitted that in the absence of sufficient materials or
evidence, the family Court has come to an erroneous
conclusion holding that the appellant/husband had
practiced cruelty against his wife.
11. The learned counsel for the respondent/wife in
his arguments submitted that 'the wife' apart from
pleading cruelty against her husband has also led cogent
evidence which evidence of her has not been denied by the
husband, as such, the family Court has rightly held that
MFA No.25652/2011
C/w MFA No.25599/2011
12
'the wife' had proved the cruelty practiced upon her by her
husband.
12. It is not in dispute that the parties to the
appeals were married to each other on 15.10.2000 at
Qatar. It is also not in dispute that, out of their marriage
two sons by name Hamidar Reheman and Abdul Reheman
respectively were born on 28.10.2001 and 21.03.2004
respectively.
13. In the family Court, 'the wife' got herself
examined as PW-1 and got examined her mother Smt.
Jahanara as PW-2 and got marked documents Exs.P1 to
P5. The husband got himself examined as DW-1 and on
his behalf he examined two more witnesses as DW-2 and
DW-3. He also got produced and marked Exs.D-1 to D-9.
'The wife' in her examination-in-chief has stated that her
husband and his family members were abusing her and
were also demanding an additional dowry of a sum of
`10,00,000/- from her. She has further stated that golden
MFA No.25652/2011
C/w MFA No.25599/2011
13
ornaments worth `8,00,000/- given to her in the marriage
were also sold by her husband for his luxurious life. She
was also compelled to do maid servant work. Further, in
her examination-in-chief she has also stated that during
her stay with her husband and after the birth of the
children, her husband started suspecting her character
and also started putting serious restrictions upon her
without leaving her to go out from the house for any
purpose including marketing and bank work etc. Her
husband also warned her that, if at all she has to go out of
the house, she shall be necessarily accompanied with one
of his family members. He also started making allegations
against her alleging that she had affairs with other
persons and also gone to the extent of alleging that she
had extra marital relationship. Even though PW-1 was
subjected to very detailed and lengthy cross-examination
from her husband side, still these statements made by
PW-1 in her examination-in-chief in the form of an
affidavit evidence were not specifically and categorically
MFA No.25652/2011
C/w MFA No.25599/2011
14
denied in her cross-examination. As such, her contention
that she was subjected to unreasonable restrictions in her
husband's house and also that her character and fidelity
was seriously suspected by her husband have remained
un-denied. Even though her cross-examination from her
husband's side has run into several pages, but the said
cross-examination has elicited further details regarding
the allegations made by 'the wife' against her husband and
has elicited few more details regarding the allegations
made by her against her husband. Several suggestions
were made to PW-1 in her examination-in-chief wherein
the stand taken by her husband was put to her, but all
those suggestions were not admitted as true by PW-1.
Even an attempt was made in her cross-examination to
show that 'the husband' was not only taking care of his
wife, but also of his children in the form of paying
`4,00,000/- as donation for the admission of their first
child to the Bishop Cattan School, but PW-1 has not only
denied the said suggestion, but made it clear that the
MFA No.25652/2011
C/w MFA No.25599/2011
15
quantum of donation amount was only `80,000/- wherein
also her mother had contributed some share. The said
statement of PW-1 was not denied by the husband side.
An attempt was also made in the cross-examination of
PW-1 that her brother was a mentally retarded person
which she did not admit but stated that he was suffering
with Schizophrenia. In this way, a major portion of the
cross-examination of PW-1 has gone in eliciting more
details about the allegations made by PW-1 against her
husband and also about the stand and the health
condition of her maternal family member. However, those
statements which have come out in the cross-examination
would in no way enure to the benefit of the husband.
14. On the other hand, the husband who was
examined as DW-1 in his affidavit evidence has reiterated
the contentions taken up by him in his written statement.
He has denied the allegations made by his wife against
him and also stated that his wife was indifferent and was
MFA No.25652/2011
C/w MFA No.25599/2011
16
not willing to stay with him in his joint family. Regarding
the allegations of 'the wife' that in order to convince her
parents to meet the demand of her husband for additional
dowry, in which regard she took her husband to Belgaum
on 13.01.2007 was denied by DW-1. He has stated that on
the date 13.01.2007 and 14.01.2007 he had been to
Hindupur for his personal work and that having faced
serious pain in the chest and other health problems, he
visited the District Government Hospital, Hindupur and
took treatment there on those dates. However, in his
cross-examination, he admitted a suggestion as true that
the said defence taken by him that on those two dates he
had not been to Belgaum, on the contrary, he visited
Hindupur and also had taken treatment in a Hospital was
not stated by him in his written statement. Thus, the
explanation offered by DW-1 to falsify the allegation of PW-
1 that there was a demand by her husband for additional
dowry and that to convince her parents for meeting the
said demand, she had taken him to Belgaum on
MFA No.25652/2011
C/w MFA No.25599/2011
17
13.01.2007, does not inspire confidence to believe the said
statement. While eliciting the details about the behavior
and attitude of 'the husband' with respect to his wife and
children, it was elicited in the cross-examination of DW-1
(husband) in the form of admission of a suggestion that he
had not written any letters to his wife or children
expressing his best wishes to them on their birthdays. In
the very same cross-examination, he has specifically
stated as below:
"I have no love and affection towards my
wife and children"
15. Even after making such a statement, 'the
husband' (DW-1) has not volunteered to give any
explanation as to what made him to say so. As such, it
remains that his denial of the allegation that he was not
taking care of his wife and children is only a lip sympathy,
but in fact he was not loving his wife and children and
was not affectionate to them. In the very same cross-
MFA No.25652/2011
C/w MFA No.25599/2011
18
examination, he has further admitted a suggestion as true
that his wife has been looking after the children and their
education for the last four years. This also go to show
that he was not giving attention to 'the wife' and children
though was required by him.
16. P.W.2-Smt.Jahanara is the mother of 'the wife'.
She has fully supported the case of 'the wife' and spoken
about the ill-treatment said to have been meted to her
daughter by 'the husband' and the demand for dowry
made by him. Being the mother of 'the wife', she would be
in a better position to know many of the internal matters
of the family of the parties to these appeals. The denial
suggestions made to her in her cross-examination has not
been admitted as true by her. An attempt was made in her
cross-examination from the husband side that she was
given a sum of `9,00,000/- while the parties were at
Qatar, but the said suggestion was not admitted as true
MFA No.25652/2011
C/w MFA No.25599/2011
19
by her. As such, the evidence of P.W.2 is in consonance
with the evidence of P.W.1.
17. D.W.2-Mohammad Maseeulla Shariff is the
driver of the car of 'the husband' since the year 2000. He
has stated about 'the husband' employing the servant for
domestic work and alleged that 'the wife' was frequently
visiting Qatar after shifting the residence by the parents of
'the wife' to Belagaum. However, it is to be noticed that
merely 'the wife' visiting Qatar itself cannot be considered
as an ill-treatment meted to her husband. It is because
P.W.1 in her cross-examination itself has admitted a
suggestion as true that she has to go to Middle East
countries once in six months so as to retain her status as
"NRI". Thus, her frequent visit to Middle East countries
cannot be considered as desertion of her husband by her.
Barring this, the evidence of D.W.2 would in no way help
the husband's case.
MFA No.25652/2011
C/w MFA No.25599/2011
20
18. Similarly, the evidence of D.W.3, who claims to
be an Advocate is also not of much help to 'the husband'.
He has spoken only about he along with one Sri.Musheer
and others to the house of the parents of 'the wife' at
Belgaum prior to the marriage of the parties herein, for the
purpose of negotiation to the marriage. As such, his
evidence would be in no way helpful to either of the
parties in the case, which is about 'the wife' living away
from her husband for no reason and 'the wife's contention
against her husband about the husband subjecting her to
cruelty and deserting her.
19. From all these evidence, it is clear that 'the
wife' was subjected for unreasonable restrictions about
her movements in the society by her husband and that
she was also confined to home and was kept under
surveillance under suspicion of her fidelity and character.
A woman who is suspected by her husband with regard to
her character and fidelity is natural to feel very much
MFA No.25652/2011
C/w MFA No.25599/2011
21
annoyed and an unfounded suspicion drives the subjected
lady to mental agony which can be called as mental
cruelty practiced upon such a lady by her husband. In the
instant case, 'the wife' was subjected to such mental
cruelty by 'the husband'.
20. Considering the said aspect, the family Court
has rightly come to a conclusion that 'the wife' was
subjected to cruelty by her husband. Secondly, in order to
avoid such cruelty, if the said wife is living with her
parents and away from her husband for sometime by that
itself, it cannot be called that for no valid reason she has
denied or deprived her husband, the conjugal rights for
which he is entitled to. Therefore, the family Court has
rightly come to a conclusion in decreeing the suit filed by
'the wife' for dissolution of the marriage solemnised
between the petitioner-wife and the respondent-her
husband on 15.10.2000 and dismissing the suit of 'the
husband' in O.S.No.16/2009 filed seeking the relief of
MFA No.25652/2011
C/w MFA No.25599/2011
22
restitution of conjugal rights. We do not find any
reason to interfere in the said finding of the family Court.
Accordingly, we proceed to pass the following:
ORDER
The appeals filed in MFA No.25652 and 25599 of 2011 are dismissed.
Sd/-
JUDGE Sd/-
JUDGE *Svh/MBS/−