Karnataka High Court
Saleha Julekha W/O. Mohammed Bismilla vs Mohammed Bismilla S/O Late Abdul Raheem on 24 March, 2017
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 24TH DAY OF MARCH, 2017
PRESENT
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
AND
THE HON'BLE MR. JUSTICE B.A. PATIL
MFA No.201241/2014 (FC)
BETWEEN:
Suleha Julekha,
W/o Mohammed Bismilla,
Age about : 31 years,
Occ: Nil,
R/o H.No.7-771/3,
A2B Darga Road,
Masjid Saleheen Muslim Chowk.
Gulbarga - 585104.
... Appellant
(By Sri. Venkatesh G., Advocate)
AND:
Mohammed Bismilla,
S/o Late Abdul Raheem,
Age about : 35 years,
Occ: Mason Work,
R/o Iftekar sab Hotel,
Mecca Colony,
Ring Road,
2
Gulbarga-585104.
...Respondent
(Notice to respondent held
sufficient V/o dated 13.02.2017)
This Miscellaneous First Appeal is filed under
Section 19 (1) of Family Court Act, against the
Judgment and Award dated 30.04.2014 passed in O.S.
30/2013 on the file of the Dist. Judge Family Court
Gulbarga. The suit filed U/S 9 of Hindu Marriage Act
1955 is decreed.
This appeal coming on for final hearing this day,
B.A. PATIL J., delivered the following:-
JUDGMENT
This Court by order dated 10.03.2017 had allowed the appeal and had set aside the judgment and decree passed in O.S.No.30/2013 dated 30.04.2014. At the time of signing the judgment we noticed from the original records that there is some factual misrepresentation and some facts have been suppressed by the learned counsel for the appellant. As such the said order was recalled by order dated 24.03.2017. After hearing the learned counsel 3 for the appellant now we have proceeded to pass the present order.
Though this appeal came up for admission, with the consent of learned counsel for the appellant, the matter is taken up for final hearing. Though notice served on the respondent, he did not put in his appearance before this Court.
2. This appeal is by respondent/wife, assailing the judgment and decree in O.S. No.30/2013 dated 30.04.2014 passed by District Judge, Family Court Gulbarga praying to set aside the impugned order.
3. Brief facts leading to filing of the suit are that:-
plaintiff and defendant got married on 28.05.2002 at Gulbarga, as per Muslim customs and usage. They lead marital life for about ten years and have begotten two children. During 2012 plaintiff went to Saudi Arabia for livelihood but because of ill-health within a period of six months returned to India. It is the further case of the 4 plaintiff that defendant started quarreling without just cause, neglected him and his children and went to her parent's house, thereby started living with her parents.
It is the further case of the plaintiff that defendant failed to perform her conjugal obligation, plaintiff moved from pillar to post to bring her back but it become in vein, she refused to join with the plaintiff. As such a suit came to be filed for restitution of conjugal rights.
4. For having been served the suit summons defendant appeared through her counsel and thereby contested by filing written statement interalia contending that plaintiff use to ill-treat and harass both physically and mentally and she use to stay with him under constant threat and danger to her life. Further it contended that plaintiff use to demand money from her and also from her parents in that light he use to abuse her with filthy language and also use to harass, humiliate, insult in front of neighbors. It is further 5 contended that, it is impossible to her to live with him. On these grounds she prayed for dismissal of the suit.
5. From said pleading following issues were came to be framed by the trial Court :-
"1. Whether plaintiff proves that the defendant has neglected and deserted the plaintiff without just and reasonable cause?
2. Whether plaintiff is entitled decree as prayed for?"
3. What order or decree?."
after examining plaintiff and defendant and their witnesses, after hearing the counsels on both the sides, answered the above issues in the affirmative and thereby decreed the suit. Assailing from the said order the present appeal is filed.
6. The learned counsel for the appellant Sri. Venkatesh G. took several contentions but the main contention is that impugned judgment and decree is one under Section 9 of Hindu Marriage Act of 1955, said act is applicable to Hindus, admittedly plaintiff and 6 defendant belong to Muslim community, marriage is performed as per the Muslim customs and usage and as such impugned judgment and decree is without jurisdiction and is not sustainable in law. He would also further contend that learned District Judge, Family Court, Gulbarga, has not properly appreciated the evidence and facts and has not considered the conduct of the husband and if it is ordered for restitution of conjugal rights it would amount to compelling her to live with him as against her wish. In that light the lower Court ought to have dismissed the suit.
7. It is an admitted fact that, the plaintiff and defendant belong to Muslim community, marriage is performed as per the Muslim customs and usage. Though the plaintiff filed the suit as contemplated under the law but the judgment came to passed under Section 9 of Hindu Marriage Act, 1955. 7
8. On perusal of records it indicates that the impugned judgment is passed under Section 9 of Hindu Marriage Act, 1955. For the purpose of brevity, We quote Section 2 of the Hindu Marriage Act.
"Application of Act.--(1) This Act applies--
(a) to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj,
(b) to any person who is a Buddhist, Jaina or Sikh by religion, and
(c) to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.
Explanation :--The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be:--
(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;8
(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged; and
(c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.
(2) Notwithstanding anything contained in sub-
section (1), nothing contained in this Act shall apply to the members of any Schedule Tribe within the meaning of clauses (25) of Article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs.
(3) The expression "Hindu" in any portion of this Act shall be construed as if it included a person who, though not a Hindu by religion, is nevertheless, a person to whom this Act applies by virtue of the provisions contained in this section. On going through the above provision of law it indicates that the Hindu Marriage Act and its provisions are applicable only to Hindus and it is not applicable to Muslim, Christian, Parsi or Jew's. Admittedly there is no matrimonial law of general application in India. There is a Hindu law for Hindus, a Mahomedan law for Mahomedan, a Christian law for Christian and Jew's 9 law for the Jew's. Though under the Mahomedan law for the purpose of dissolution of marriage, the dissolution of Muslim marriage Act 1939 is made applicable but it does not deal with the aspect of restitution of conjugal rights. So also other Muslim enactment's deal with the aspects of restitution of conjugal rights. However Section 281 of Mullas Mohamedan law deals with the aspect of the restitution of conjugal rights but does not throw any light under what circumstances a decree for restitution of conjugal rights can be granted or rejected or under which provision of law and where exactly such petition has to be filed. For the purpose of clarity we quote Section 281 from the Principles of Mohamedan law by Mulla 20th edition at page 367 which reads as under:-
"Where a wife without lawful cause ceases to cohabit with her husband, the husband may sue the wife for restitution of conjugal rights. "10
On going through the above discussions it indicates that there is no such codified law for seeking the relief of restitution of conjugal rights. In the light of above discussion it indicates that the marriage celebrated under the personal law cannot be set right or restored by the law belonging to other religion. The parties will be governed by their personal law. It has been held in the case of Sarala Mudgal (Smt.) President Kalyani and others V/s Union of India and others at para 11:-
"In India there has never been a matrimonial law of general application. Apart from statute law a marriage was governed by the personal law of the parties. A marriage solemnized under a particular statute and according to personal law could not be dissolved according to another personal law, simply because one of the parties had changed his or her religion. "
Keeping the above proposition of the law in mind, when facts on hand are examined, it would indicate that admittedly plaintiff and defendant belong to Muslim community and their marriage had been performed as per the Muslim customs and usage and they will be 11 governed by the Muslim law. In that light on careful and conscious bestowing our attention to the records it would disclose that suit which has been filed by the respondent/plaintiff is one under Order 7 Rule 1 of CPC but the same came to be decreed under Section 9 of the Hindu Marriage Act of 1955. When both plaintiff and defendant are governed under the Muslim law, their marriage cannot be dissolved as per the provisions of Hindu law for the said relief.
9. We are conscious of the fact that a suit will lie before the Civil Court or the Family Court for restitution of conjugal rights but it must be under the general law and as per the Section 9 of CPC. Section 9 of Civil Procedure Code reads as under: -
"Courts to try all civil suits unless barred.--The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
(Explanation I).--A suit in which the right to property or to an office is contested 12 is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.
(Explanation II.-- For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in explanation I or whether or not such office is attached to a particular place) "
On going through the said provision passing of the decree by the Family Court under Section 9 of Hindu Marriage Act would amount to error apparent on the face of record. In that light judgment and decree passed by the Court is one without jurisdiction. As such same is liable to be set aside. The restitution of the conjugal rights is nothing but enforcement of a civil right. If any civil right has to be enforced in the absence of the personal laws, then the best recourse will be to take shelter under general law by filing a suit. Trial Court has not bestowed its attention to these aspects of the question of law and has passed the impugned judgment and decree, which appears to be on the face of it 13 erroneous, illegal and without jurisdiction. Hence, it is not sustainable.
10. Be that as it may, even on perusal of the records by us cautiously, we find that learned District Judge has not properly appreciated the facts in proper perspective. While considering such type of cases Court has to find out as to whether husband who has filed the petition for restitution of conjugal rights has filed such case with a bonafide intention or not. The Court should consider at the time of giving such relief whether the said relief would make it equitable to compel the wife to live with her husband. In the absence of any rule to pass a decree 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 in equitable to do so. How the matter has to be dealt by the Court, while considering the case of restitution of conjugal rights has been discussed in the case of Raj 14 Mohammad V/s Saeeda Amina Begum reported in ILR 1976 Page 1108:-
"(A) Muslim Law : Restitution of Conjugal rights--Wife staying away from husband on grounds of cruelty--Husband taking a second wife--Court entitled to consider the surrounding circumstances in refusing relief though personal law permits taking of second wife.
A Muslim husband (Plaintiff) had married the defendant in the year 1963. The defendant's case was that by the year 1966 she gave birth to two children and the plaintiff began demanding monies from her father and as the father refused to oblige the plaintiff she was ill-treated and therefore she had to stay with her father. She issued a notice to the plaintiff claiming maintenance for herself and her children. The plaintiff in turn sued the defendant for restitution of conjugal rights. After instituting the suit the plaintiff took a second wife. The Trial Court dismissed the suit and the Appellate Court held that the plaintiff's suit was not a bonafide one.
In second appeal, it was argued that merely because the plaintiff had taken a second wife which was permissible under the personal law, that could not be the reason to deny relief to the plaintiff "
Held:-
Though the Court has to bear in mind the personal law applicable to the parties it can take into account the surrounding circumstances while 15 considering the question whether restitution of conjugal rights should be ordered or not.
In the instant case, the plaintiff failed to provide maintenance to his wife and his children for nearly 3 years. The suit itself was filed after the defendant called upon the plaintiff to pay the maintenance amount to her. The plaintiff took a second wife after instituting the suit. It could not be said that under these circumstances the defendant had no reasonable and justifiable cause to stay away from her husband. 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 in inequitable for it to compel the wife to live with her husband. Notions of law in this 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.
Further at para 6, 7 and 8 it has been observed as under :-16
"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 Raheem vs. Shumsoonnissa Begum (1) p.615 as follow:
"It seems to them clear, that if cruelty in a decree rending 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 prove, 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"
7. In Anis Begum vs. Muammad Isttafa Wali Khan (2), Sulaiman, C.J., observed as follows:
"Their Lordship of the Privy Council in the case of Moonshee Buzloor Raheem vs. Shumsoonnisa Begum (Moore India Appeals Vol.11-1966-67 p.551) 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 17 Muhammadan law. The observation of their Lordships was directed to emphasizing 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 recognized 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 page 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."
8. After referring to the decision of the Privy Council mentioned above, Dhavan, J. in Itwalri vs. Asghaari and others (3) observed as follows:-
18
"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:
"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."
In the above said decision at para 6 to 8 by referring to catena of decisions, the said principles have been accepted by the Court. By going through the ratio laid 19 down in the decision, it has been held that it would be just and reasonable to deny the relief, if the circumstances show that it would be inequitable to do so. On perusal of the records and close scrutiny of the evidence, granting of the relief of restitution of conjugal rights would result into inequitable. On perusal of facts of case on hand, it indicates that appellant has taken up a specific defense stating that she has been ill treated by the respondent and there is constant threat and danger to her life. In that background trial Court ought to have verified whether it is just and proper to grant the relief sought for by the plaintiff. As observed above there is no absolute right with plaintiff to claim restitution of conjugal rights as against his wife unconditionally. By keeping in view above said set of principles in mind and on perusing the records we are of the considered opinion that learned judge has proceeded to decree the suit erroneously. For said 20 reason also judgment and decree in question would not be sustainable in law.
11. Keeping in view the above said facts and circumstances of the case and the discussion made herein above by us, we proceed to pass the following: -
ORDER
(i) Appeal is hereby allowed.
(ii) Judgment and decree passed in O.S.No.30/2013 dated 30.04.2014 is set aside and matter is remitted back to the District Judge, Family Court, Gulbarga for being disposed of in accordance with law keeping in mind the observations made by us hereinabove.
(iii) Parties to bear their own costs.
Sd/-
JUDGE Sd/-
JUDGE RSP