JANI Vs. MOHD KHAN

JUDGEMENT

(1.) THIS is the defendants second appeal and arises out of a suit for restitution of conjugal rights brought by Mohd. Khan the respondent against the appellant in the court of the Sub -Judge, Handwara. The suit was decreed by the learned Sub -Judge and on appeal the decree was affirmed by the learned District Judge Baramulla.

(2.) WHEN this case came up for hearing before my Lord the Honâ„¢ble Chief Justice a question was posed whether a suit for restitution of conjugal rights can be maintained at the instance of a Khanadamad. It being a common ground in the case that Mohd. Khan was brought as Khanadamad for Mst. Jani. The necessity of referring this question to the Full Bench arose because of the existence of a Division Bench Ruling given in Civil Second Appeals Nos. 201 and 204 of 2003 by Ghose C. J. and Masud Hussan J. who observed that a Khanadamad was not entitled to bring a suit for restitution of conjugal rights as the custom of making a Khanadamad prevalent in the Valley abrogated the Muslim Law of marriage and it imposed an obligation upon the husband to reside in the brides fathers house and not to compel his wife to leave it and reside with him elsewhere. The question was therefore referred to a Full Bench. The Full Bench considered the judgment of the Division Bench and observed that this judgment did not serve as an authority for the general proposition that no suit under any circumstances lies for restitution of conjugal rights at the instance of Khanadamad. The Full Bench answered the question thus: - "Thus if in the present case the wife has refused to live with the husband in her own house or to perform her marital obligations and the husband can prove this fact, he is entitled to a decree for restitution of conjugal rights to the extent indicated above."

(3.) THE answer to the question having come from the Full Bench a further question for consideration in the present case is whether an agreement between the husband and the wife by which the husband gives a right to his wife to divorce him on certain conditions is invalid as being opposed to public policy. The defence of the defendant in the case was that the marriage between the couple had stood dissolved inasmuch as Mohd. Khan had executed an agreement dated 29 -12 -1955 in which he had agreed that he would not commit an act of deceit or would be guilty of disobedience to his father -in -law or would not render service to him. In the event of breach of any of the aforesaid conditions divorce would follow. Both the courts below have gone into this question and they have found this agreement not in accordance with law. The trial court has also held that this agreement was not proved. The first appellate court has recorded the same finding. It has, however, even proceeded to consider the legal value of these documents and has come to the conclusion that this document, being opposed to the public policy, cannot be given any effect.