ITWARI Vs. ASGHARI

JUDGEMENT

(1.) This is a Muslim husband's appeal against the decision of the learned District Judge, Rampur, dismissing his suit for restitution of conjugal rights against his first wife who refused to return to him after he had taken a second wife and accused him of cruelty to her. The appellant Itwari was married to Smt. Asghari about the year 1950 and lived with her for sometime. Then things went wrong and the wife ultimately left him to live with her parents; but he took no steps to bring her back and married another woman. The first wife filed an application for maintenance under Section 488 Cr. P. C. Thereupon the husband filed a suit against her for restitution of conjugal rights. For some reasons he impleaded her father and two brothers as co-defendants. The wife contested the suit and alleged that she had been turned out by her husband who had formed an illicit union with another woman whom he subsequently married. She alleged that he had beaten her, deprived her of her ornaments and thus caused her physical and mental pain. He had also not paid her dower.

(2.) The learned Munsif decreed the husband's suit and held that the wife had failed, to prove that she was really ill-treated and that the husband had not been guilty of such cruelty as would disentitle him to a decree for restitution of conjugal rights against her. He held that the mere fact that the husband had taken a second wife raised, no presumption that Smt. Asghari had suffered inequitable treatment at his hands, and was influenced by the husband's explanation, that he had not taken his second wife to live in hid house with Smt. Asghari. He also took the view that if the wife felt aggrieved, by her husband's second marriage she should have obtained a decree for dissolution of marriage and expressed surprise that she had not done so, thereby adopting the strange and inconsistent view that the husband's conduct in taking a second wife is a good ground for the first wife to sue for dissolution of her marriage and put an end to all the rights of the husband but no ground for contesting the husband's suit for assertion of the same rights under the same marriage. The fact that the wife had taken things lying down weighed with the learned Munsif in disbelieving her allegation of cruelty against Itwari. He decreed the husband's suit and also passed an order directing Smt. Asghari's father and brother not to prevent her from going back to him.

(3.) On appeal, the learned District Judge, Rampur reversed the finding of the trial court and dismissed the husband's suit with costs. He was of the opinion that Itwari had filed his suit for restitution of conjugal rights only as a counter-blast to the wife's claim for maintenance under Section 488 Cr. p. C., and pointed out that, after the wife had left him and been living with her .parents for so many years, he took no steps to get her back and that his long silence was an indication that he never really cared for her. He observed,