Citations: Shakila Banu Vs Gulam Mustafa AIR 1971 Bom 166
Date of Judgement: 12 March 1970
Equivalent citations: AIR 1971 Bom 166, (1970) 72 BOMLR 623, ILR 1971 Bom 714
Bench: Hon’ble Justice G.N. Vaidya
Court: Bombay High Court
Case No.: Second Appeal No. 899 of 1969
Case Type: Second Appeal
Plaintiff: Shakila Banu
Defendant: Gulam Mustafa
Statutes Referred:
- Criminal Procedure Code, 1973 Section 488
Cases Referred:
- Bai Jivi Vs Narsing Lalbhai (1927) 29 BOMLR 332, 101 Ind Cas 403,
- The Bombay Cotton Manufacturing Vs Raja Bahadur Shivlal Motilal (1915) 17 BOMLR 455,
- Ram Prakash Vs Anand Agrawal 43Ind App 73 at p. 83= (AIR 1916 PC 256)
- Bipin Behari Tawakely Vs Kishori Lal Mehra And Ors. 1981 (2) DRJ 60,
- Russell Vs Russell, (1897) AC 395,
- Mirjan Ali Vs Maimuna Bibi, AIR 1949 Assam 14,
- Mackenzie Vs Mackenzie, (1895 AC 384).
Facts:
- In an ongoing case Shakila Banu has filed a Second Appeal against her husband Gulam Mustafa for restitution of conjugal rights. The couple were married according to the rites of their community known as Momin Mohamedans on January 14, 1961. They had a daughter in May 1966.
- The husband and the wife lived together for 3 years after she attained puberty. Husband was a weaver and lived jointly with his parents.
- The husband alleged in the suit that he never mistreated the wife. He prayed for a decree for restitution of conjugal rights in the court of the 4th Joint Civil Judge, J.D Dhulia.
- The wife alleged that she wanted divorce from him and therefore filed an application for maintenance under Section 488 of the Criminal Procedure Code by making false allegations against the husband that he was drinking and gambling and threatened to injure the wife.
- The trial court articulated the necessary questions, and the parties primarily relied on oral evidence.
- The husband and his father, as well as two neighbours, Abdul Gafur Kalekhan and Haji Gafur Dinmohamed, were also investigated.
- The wife and two respected senior members of the community, Fajlu Rehamam and Abdul Jabbar, were also investigated.
- The learned Civil Judge accepted the wife’s testimony, which was protected by her witnesses Fajlu Rehman and Abdul Jabbar.
- Hence the Judge rejected the plaintiff’s complaint, in which he had sought support and conjugal rights from his wife.
Issues Involved:
- Whether the decision passed by the previous court is set aside or not?
- Whether the decree passed by the learned Civil Judge was restored or not?
Contentions of the Appellant:
The counsel for plaintiff contented that
- The wife resisted the complaint, claiming that her husband was addicted to drinking and gambling, and that he constantly threatened her with bodily harm. She contended that her husband was abusing her and mistreating her, so she was transferred to live with her father and told she should never return.
- She further stated that she was unwilling to live with her husband because she was in risk of losing her life.
- She also contended that the litigation was brought by the husband as a retaliation for her maintenance application.
Contention of Respondent:
The counsel for defendant’s contented that:
- The husband stated that her wife is an old lady of 22 years and accused his parents of beating her like an animal. Her evidence showed that it was not possible for her to state a false story of ill-treatment.
- He also contended that in her cross examination, no basis was given for her to declare falsehoods about the defendant.
Judgment:
The Appeal was allowed.
It was held that in this case that decision passed by the learned Assistance Judge’swas set aside as Judge said the wife had not proven that she was in danger and therefore her apprehension of danger to her was not reasonable and the decision passed by the learned Civil Judge is restored. Respondent have to bear the cost of the appellant in the court as well in the lower appellate court.
Ratio Decidendi:
In this present case the decision passed by the learned Assistance Judge was set aside as the wife had not proven that she was in danger and therefore her apprehension of danger and the decision passed by the learned Civil Judge is restored as suit was filed for restitution only after the wife had filed an application for maintenance under Section 488 of Criminal Procedure Code, 1973 and she had no justification for her apprehensions that she would not be safe in her matrimonial home with her husband. Husband have to bear the costs of the appellant in the court as well in the lower appellate court.
Conclusion:
It was shown in instant case that the suit was filed by the husband with malafide intention for restitution of conjugal rights to counter the claim for maintenance under Section 488 Criminal Procedure Code, 1973 which was filed by his wife. There is no reasonable excuse for such validity of restitution of conjugal rights. Thus, the Apex allowed the appeal and respondent shall liable for cost.
Drafted By: Samanta Rao, CLS- Gitarattan International Business School
Edited by: Aashima Kakkar, Associate Editor, Law Insider
Published On: October 19, 2021 at 10:15 IST