JAMIRADDIN AHMED Vs. MTSAHERA KHATUN BIBI

JUDGEMENT

(1.) This appeal arises out of a suit instituted by a husband for restitution of conjugal rights against the wife. Several defences were taken on behalf of the wife, one being to the effect that there was a talak by reason of which the plaintiff was not entitled to claim restitution of conjugal rights any further. Various allegations were made against the husband in the written statement alleging inter alia that he had got no means, and that there was cruelty on his part. Both the Courts below have refused to grant the plaintiff the decree asked for in the suit. Both the Courts below have come to the conclusion that the story as to talak was altogether unfounded. The Court of first instance towards the end of its judgment observed that the alliance between the husband and the wife was, an unhappy one unhappy from the side of both of thorn that the husband's only fault was that he was poor and foolish and that the wife was too intelligent to be under his protection. It observed further that the letters of the wife to her paramour if may be stated here that the Defendant No. 4 was the alleged paramour of the wife-showed that the wife had an intelligence far beyond the reach of her husband. That Court held that there was evidence to show that the wife had already given her affection to the said Defendant No. 4, and here I may quote the words used by the learned Munsif : "The law cannot have a duel with nature as the latter must have its own course" and by this process of reasoning the learned Munsif came to the conclusion that the husband was not entitled to a decree.

(2.) The husband then preferred an appeal to the Subordinate Judge. That learned Judge affirmed all the findings of fact which had been arrived at in favour of the husband by the Court of first instance. There is no specific finding on the question of adultery in the judgment of the Subordinate Judge, but towards the conclusion of his judgment the learned, Judge States that the suit had been instituted by the plaintiff not for his own sake but at the instigation of the father of the Defendant No. 4 who wanted to extricate his son from the struggle, meaning evidently that the wife was living in adultery with the Defendant No. 4. That learned Judge, however, also refused to pass a decree in favour of the plaintiff. His reasons are that the case was one of an unhappy alliance that the plaintiff had openly charged the wife with adultery; and this was clear cruelty on the part of the plaintiff and on this ground he thought that no specific performance of the contract should be allowed. He further found that there was a great risk in the two living together as there would be constant quarrels and fighting and their lives would be in danger and one day one would find himself killed or both may be killed together. He recorded an opinion to the effect that the parties could not be expected to live in amity and that if all those troubles arose out of the negligence on the part of the husband the latter should be considered guilty of contributory negligence. On those grounds the learned Subordinate Judge affirmed the decree of the Court of first instance.

(3.) By contributory negligence the learned Judge evidently meant that the husband had not taken sufficient precaution so that the wife might not go on living in adultery. Be that as it may, these are all the grounds which have been referred to by one Court or the other in refusing the plaintiff the relief that he sought-for in the present suit. As regards cruelty the Judicial Committee in the case of Moonshee Buzloor Ruheem V/s. Shumsoonnissa Begum [1866] 11 M.I.A. 551 has observed thus: The Muhammadan Law, on a question of what is legal cruelty between man and wife, would probably not differ naturally from our own, of which one of the most recent expositions is the following : There must be actual violence of such a character as to endanger personal health or safety ; or there must be a reasonable apprehension of it.