SHAKILA BANU Vs. GULAM MUSTAFA

JUDGEMENT

(1.) THIS Second Appeal filed by one Shakila Banu arises out of a suit filed by her husband, the respondent, Gulam Mustafa for restitution of conjugal rights. They were married according to the rites of their community known as Momin Mohamedans on January 14, 1961. The wife resided with the husband for about 3 years after she attained puberty. The husband, who is a weaver, is living jointly with his father. The husband alleged in the suit that although he never illtreated the wife and a daughter was born to them sometime in May 1966, the wife wanted him to live separately from his father. The husband refused and hence the wife went to reside with her parents in November 1966. She wanted divorce from him and therefore filed an application for maintenance under Section 488 of the Criminal Procedure Code making false allegations against the husband that he was drinking and gambling and threatened to injure the wife. He, therefore, prayed for a decree for restitution of conjugal rights in the suit which was filed on March 31, 1967, in the Court of the 4th Joint Civil Judge, J. D. Dhulia.

(2.) THE wife resisted the suit contending that the husband was addicted to drinking and gambling and he always threatened her with injuries to her person. She alleged that the husband was beating her and illtreating her and sent her to reside in her father's house saying that she should never return. She denied that she had asked the husband to reside separately and submitted that several meetings of the panchayat of the community were held for re-union of the plaintiff and the defendant but they were of no avail as the husband persisted in illtreating the wife. She further stated that she was not willing to go and reside with her husband as there was danger to her life. She also contended that the suit was filed by the husband only as a counter blast to her application for maintenance.

(3.) THE necessary issues were framed by the trial Court and the parties mainly relied on oral evidence. The husband examined himself and his father as well as two neighbours Abdul Gafur Kalekhan and Haji Abdul Gafur Dinmohamed. The wife also examined herself and two respectable elder members of the community Fajlu Rehaman and Abdul Jabbar. The evidence of the husband and the wife was conflicting. The learned Civil Judge believed the wife's evidence which was supported by the evidence of her witnesses Fajlu Rehman and, Abdul Jabbar; relied on the admissions made by the father of the husband, that the suit was filed one year after the panchayat of the community had decided that the wife should go to the husband and directed the husband to behave himself, He also relied on the fact that the suit was filed, as admitted by the husband because the thought of filing a claim for restitution of conjugal rights occurred to him when the wife filed an application for maintenance; and dismissed the suit of the plaintiff. In the course of his judgment, the learned Civil Judge had given very good reasons for believing the wife, observing as follows in para 9 of his judgment: "the defendants. Ex. 22, stated that while she was residing with the plaintiff, he and his parents used to beat her like an animal, they did not use to give her food and finally they left her at her father's house saying that she should not return to them. In her cross-examination she stated that they used to beat her after closing door and repeated all the allegations of illtreatment. She denied that she ever asked the plaintiff to reside separately from her parents. She does not now want to go to the plaintiff because she feels that there is danger to her life. No reason was suggested in her cross-examination why she should state false-hood against the plain- tiff with whom she was married. She is a young lady of 22 years in age, appears to be quite innocent in the witness-box, and her evidence showed that it was not possible for her to state a false story of illtreatment. " The learned Judge also considered as reliable the evidence of Fajul Rehman and Abdul Jabbar. who were the elders of the community. Fajul Rehman's evidence was to the effect that the plaintiff and his parents illtreated the wife and he had advised the father of the plaintiff to see that the defendant was not illtreated on two or three occasions. He had attended the panchayat as an old man of the community. The father of the husband had admitted before him that his son was not behaving properly. The learned Civil Judge observed: "the witness is an old man and there was no reason for him to state a false story about the illtreatment given to the defendant. He stated that he had report of the bad conduct of the plaintiff. The old man, who is a devout Mohamedan, would have not taken part in meeting held to give divorce to the defendant, if he had disbelieved in the allegations against the plaintiff. " With regard to Abdul Jabbar, who was also cited as a witness on behalf of the plaintiff and who also referred to the panchayat meetings of the community held for reconciliation between the husband and the wife, the learned Judge observed: "but the evidence of Abdul Jabbar clearly shows that at every time there was complaint of illtreatment and the plaintiff was asked to behave properly. If the complaint of illtreatment was false, the Sardar of the community would not have advised the plaintiff to behave properly. He would have straightway put the blame on the defendant and asked her to return to her husband. The fact that the panchayat asked the defendant to go to the plaintiff does not mean that there was no illtreatment. . . . . The members of the panchayat who were all of stronger sex and under the infulence of their ancient culture, must have decided to ask the defendant to go to her husband in spite of the illtreatment to her. For me the fact that there was a question before the panchayats about the illtreatment is more important than their decisions, because the decisions clearly seem to have been given ignoring the complaint of illtreatment following the ancient culture which favour the stronger sex. Thus the evidence of Abdul Jabbar shows that the defendant was being treated with cruelty. "