WALI MOHAMMAD KHAN Vs. TAJ BARO

JUDGEMENT

(1.) In the suit out of which this appeal arises the plaintiff prayed for a decree for restitution of conjugal rights against defendant No. 1, who is his legally married wife. The suit was contested by defendant No. 1 and also by the other defendants who are her relations on the ground that the plaintiff was guilty of cruelty towards defendant No. 1 and habitually assaulted her and also kept a woman, who was a concubine, in his residential house. The lower appellate Court has accepted the case of the defendants and has come to the conclusion that the plaintiff was guilty of cruelty towards defendant No. 1 and that he also kept a concubine in the house. Upon this finding the lower appellate Court held that the plaintiff was not entitled to a decree for restitution of conjugal rights with defendant No. 1. He accordingly dismissed the suit.

(2.) In this second appeal it is contended by learned counsel for the appellant, in the first place, that the lower appellate Court has reached the findings of fact without a proper consideration of the oral evidence. Having gone through the judgments of the lower appellate Court and of the trial Court we are satisfied that the findings of fact recorded by the lower appellate Court are supported by proper evidence, and it is not open to the High Court to interfere with these findings of fact in second appeal.

(3.) Learned counsel for the appellant then contended that in spite of the findings of the lower appellate Court the plaintiff was entitled to a decree for restitution of conjugal rights. Reference was made in this connection to the decision of the Privy Council in Moonshee Buzloor Ruheem v. Shumsoonnissa Begum, 11 Moo Ind App 551, where it was pointed out that in a suit for restitution of conjugal rights cruelty would be a valid defence only if it is of such a character as to render it unsafe for the wife to return to her husband's dominion. But in the present case there is a finding that the husband has kept a concubine in the house and has also repeatedly assaulted defendant No. 1. It is stated by defendant No. 1 in the course of her evidence that the plaintiff even asked her to work as a servant of the concubine and that he assaulted defendant No. )I on several occasions. The evidence of defendant No. 1 as regards cruelty has been accepted by the lower appellate Court. It has also believed the other witnesses examined by the defendants on this point. In our opinion, there is sufficient proof in this case that the plaintiff was guilty of cruelty of such a character as to render it unsafe for defendant No. 1 to return to her husband's house. In the Privy Council case to which reference has been made 11 Moo Ind App 551, it has been pointed out by Sir James William Colvile at page 615 of the report that in a case where there is gross failure on the part of the husband to perform the obligations which the marriage contract imposes upon him for the benefit of the wife the Court will be justified in refusing assistance to the husband in a suit for restitution of conjugal rights. In our opinion, the present case falls within this principle, and the lower appellate Court was right in holding that the plaintiff is disentitled by his own conduct from getting a decree for restitution of conjugal rights with his wife.For these reasons we hold that there is no merit in this appeal. We accordingly dismiss it. There will be no order as to costs.