MAHTAB BEGUM Vs. ANSAR AHMAD

JUDGEMENT

(1.) THE parties were married according to Muslim rites on March 20, 1978. A daughter was born of the wedlock in or about December, 1979. THE wife has been living with her parents since May 18/19, 1980. THE husband gave notice on 6th September, 1980 under registered cover asking her to return within a week from the receipt thereof and resume co-habiation. THE wife applied for maintenance under section 125 Code of Criminal Procedure on 15th September, 1980 in the court of the Judicial Magistrate. THEreafter she replied to the notice aforesaid on September 23, 1980. THE husband filed a suit for restitution of con ugal rights in the Civil Court on October 1, 1980. THE suit was decreed by the trial court on September 3, 1981 with the finding that the alleged cruelty on part of the husband against the wife was not made out. THE Judicial Magistrate allowed the application for maintenance filed by the wife on 4th February, 1 83 and directed the husband to pay her at the rate of Rs. 200/- per month In respect of the decree passed by the Civil Court in the proceedings relating to the restitution of conjugal rights, it was observed that the decree had not become final since this was under appeal. THE wife appealed against the decree; a criminal revision was filed by the husband. Botn were heard by the Additional District Judge (Special Judge) and decided by separate judgments dated March 20, 1984. In the appeal, it was found that the wife did not have just ground to live apart. THE finding of the trial court on the point of absence of cruelty was affirmed. THE appeal in consequence was dismissed In the criminal revision he recorded the finding that in view of the decree for restitution of conjugal rights passed against the wife she could not maintain the said application as at present. THE revision was accordingly allowed.

(2.) THE plea taken by Smt. Mehtab Begum hereinafter referred to as the appellant in defence to the suit for the restitution of conjugal rights was that her father had given dowry to Ansar Ahmad in the amount of nearly rupees twenty- twenty-five thousand in the marriage. THE respondent, however, was not satisfied and he used to demand a Scooter, Television set and also Rs. 5,000/- in cash. It is also alleged that he is an addict to gambling and liquor and indulged in beating her. On May 18/19, 1980 he returned home at about mid night and required her to fetch Rs. 5000/- from her parents. When she declined she was beaten and turned out of the house. This also is precisely the ground taken by her in the application filed for grant of maintenance. THE husband maintains on the contrary that there is no ill treatment mered out by him to the wife and that instead the appellant and her parents have been desirous that he should live apart from his family to which he is not agreeable. His version about the incident dated 18th May, 1980 is that two of the brothers of the appellant came over to his residence and took her away on a false pretext, namely, that the father had suffered heart-attack. It is claimed that he has been prepared all along to keep the appellant with himself and to maintain her also.

(3.) SRI S. S. Agnihotri learned counsel for the appellant was confronted necessarily with the question as to what is the substantial question of law arising so far as the second appeal is concerned. The finding on point of fact even if that be regarded as erroneous, cannot invite interference by this court in second appeal. It is of no consequence that some other authority may have reached a different conclusion. The decision reached may not be classed as perverse since it is not a case where the finding be said to be such as not reasonable authority may reach on the basis of the evidence placed on the record. All that SRI Agnihotri found possible to submit in this respect was that the courts below have not considered the entire material brought on the record. Upon scrutiny into the record I find that this contention lacks substance. The plaintiff-respondent examined bimseJf and another PW Mohd. Ismail. The wife came to the witness box and produced DW Dr. S. K. Zindal. Both the courts have analysed their testimony. The respondent refuted that he demanded extra dowry or that he used to indulge in beating the appellant. In the cross- examination Smt. Mehtab Begum deposed that the only issue on which they used to quarrel was his demand for extra dowry. It is worthy of note that she was unable to refer any incident apart from what according to her transpired on the night of May 18th/19th, 1980. The more important fact in my view is that on her own showing the appellant did not tell of any such thing to any one in her parents' family at any time prior to that day. We can understand the wife not rushing to the police station or getting medically examination done, but it seems unnatural and against the ordinary course of the human conduct that even though according to her the torture physically or mentally had commenced almost immediately after the marriage, she would have kept mum for over two years. Her parents reside in the same city as the husband at a distance of about two miles only; there is a large family consisting of several brothers. It has not been alleged that the husband restrained her any time from visiting her parents during this long period. The lower appellate court cannot be held to have erred in attaching weight to her deposition that there was no complaint of any sort made by her to any of the members of her parent's family. Another feature taken note of by lower appellate court is that in the course of the attempt made by it for reconciliation between the parties in the court, the brother of the appellant accompanying her insisted her all the time that the husband should reside away from his aged mother and two widowed sisters which according to the respondent he did not find possible to accede This in part in any case supports the version of the respondent that the bone of contention between them has been his refusal to live apart from his family. The lower appellate court has made note of it specifically in the judgment; there exists no reason for accepting that it did not thus transpire nor is any application from the side of the appellant shown to have been made before the lower appellate court refuting that such a thing transpired in the course of the attempt to reconciliation between the parties. The courts has to take into consideration the entire conduct of the parties spread over the relevant period as also submittted by the appellant's counsel. There is no denying that mental anguish may also in a given case constitute cruelty without being accompanied with . Marpeet or the like but the material fact is that in the present on the evidence recorded and the attending circumstances it has been found to be non existent. The two spouses did quarrel it seems on the night of 18th/19th May, 1980, The appellant contend that she was beaten, the husband denies it. The injuries referred to by Dr. jindal upon the medical examination held on 19th May, 1980 are contusion 6 cm x 2 cm on the middle of outer aspect of the left upper arm; faint contusion 3 cm x 1 cm on the back of the abdomen on the left side and complaint of pain in the body. This he states could also result by a single fall. Be that as it may, assuming that the husband ill behaved that night and hence she left leaving behind the infant child at her husband place, the question remains whether this could in itself be enough justification for her to decline resumption of co-habitation. It is not that the incident has to be repeated necessary in each case; depending on the nature and gravity thereof in a given situation a solitary incident may as well suffice for the restitution being refused while in some other case trifling incident running in the plural may be regarded inadequate. This depends in the ultimate analysis on the facts and circumstances of a case.