MAHMOOD ALIAS NURAIN Vs. BIBI TABASSUM KHATOON

JUDGEMENT

(1.) Heard learned counsel for the appellant. Today no body appears on behalf of the sole respondent although counsel for the respondent had appeared on earlier dates.

(2.) Appellant is husband of the sole respondent. It is not in dispute that after the marriage in the year 1996, a female child was born who was aged about four and a half years when Matrimonial Case No. 291 of 2002 was filed by the appellant before the Family Court, Bhagalpur seeking restitution of conjugal rights. The said suit was dismissed for default due to non-appearance of the counsel and non-payment of a cost of Rs 5,00/-, on 13.07.2005. The adjournment application was rejected in summary manner in one paragraph with an observation that as there was no pleading in respect of payment of Mehar, as per Mohammadan Law, a woman has every right to refuse to perform marital obligation till payment of Mehar. On that ground, it was held that the suit in the present form was not maintainable. On all the aforesaid grounds, the suit was dismissed.

(3.) Neither the Mehar amount has been disclosed nor any ground has been taken that it was a prompt Mehar and was required to be paid before consummation of the marriage. Learned counsel for the appellant has placed reliance upon section 293 of Mullahs Principles of Mohammadan Law to point out that if the husband files a suit for restitution of conjugal right before sexual intercourse has taken place, non-payment of the Dower (Mehar) may be a complete defence but if the suit is brought after cohabitation has taken place with free consent, a decree for restitution may be passed conditional upon payment of Dower.