ASMATI BIBI Vs. SAIMUDDI PATHAN

JUDGEMENT

(1.) This appeal arises out of a suit for restitution of conjugal rights in which the plaintiff, the husband, after being unsuccessful in the Court of first instance, has obtained a decree in the lower Appellate Court. The defendants are the appellants in this Court, the defendant No. 1 being the wife. The two grounds put forward in the appeal on behalf of the appellants arise upon a clause in the Kabilnama which has been specified therein as the third clause. That clause runs thus: "Condition No. 3 I shall not abuse my wife or beat her and I shall not go to parabash without her permission nor shall I marry again."

(2.) The learned Vakil appearing on behalf of the appellants has contended, first, that, although the learned Subordinate Judge has found that the ill-treatment, if any, which may be taken to have been proved as having been caused by the husband to the wife did not amount to such cruelty as would entitle the wife to divorce her husband, still there should be a finding by the learned Judge on the question as to whether there was such ill-treatment although it may not amount to cruelty in the eye of the law, as would be a sufficient defence in a suit for restitution of conjugal rights. Secondly, it has been contended that the learned Subordinate Judge has been in error in interpreting the expression "I shall not go to parabash" and that he is wrong in holding that it only means that the husband shall not go to other countries without the permission of the wife or that he shall not domicile in the lands without her permission and that, as a matter of fact, the expression substantially means that the husband would not desert the wife. It is further said, that, if it was found that the husband did not maintain the wife for a period of about eighteen months or so, it should have been held, upon the circumstances of the case, that there was such a desertion and that there was a breach of the aforesaid condition and, on that ground, the learned Judge should have refused a decree for restitution of conjugal rights.

(3.) Now, with reference to the first of these contentions reliance has been placed upon the decision of the Privy Council in the case of Moonshee Buzloor Raheem V/s. Shumsonissa Begum (1867) 11 M.I.A. 551 and certain passages appearing at pp. 611 and 612 of the report have been relied upon as authority for the proposition that it is not absolutely necessary to resist a claim for restitution of conjugal rights; that the ill-treatment should be of such description as would amount to cruelty sufficient to obtain a divorce under the English law.