MT. KURSHID BEGUM Vs. ABDUL RASHID

JUDGEMENT

(1.) THE facts of this case are given in sufficient detail in the first Court's judgment. The claim of the plaintiff-respondent Abdul Rashid, which was for restitution of conjugal rights against 'the appellant Mt. Khurshid Begum who is his wife, was decreed in the Court below. The appellant, therefore, moved this Court for discharging the decree directing such restitution. This Court by its judgment, dated 8th December 1925, remanded the case to the lower appellate Court for finding on the following issues: (1) If a decree for restitution of conjugal rights is granted to the plaintiff respondent, is there likely to be danger to the life, health or safety of the defendant-appellant ? (2) Is there any other reason why the Court should not exercise its discretion in favour of plaintiff?

(2.) AFTER remand fresh pleadings were made and evidence adduced by both the parties. The learned District Judge decided both the isssues in the negative and came to the conclusion that there were no good grounds for apprehending danger to the life, health or property of the appellant,

(3.) AT the very outset I must say that the District Judge, Nagpur, who decided the case after remand has gone off his way and allowed his mind to be influenced by evidence and circumstances which had little or no bearing on the ease, and belittled the importance of the plaintiff's conduct antecedent to the suit towards the appellant. He has failed to view the case in its right perspective, and consequently it has not received that attention at his hands with reference to the Mahomedan Law applicable to the parties, which it deserved: consequently his decision which is based more on conjecture than on legal evidence cannot stand. A careful study of the record shows that he has not grasped the interconnexion between the present litigation and the previous one relating to the property in which the appellant succeeded in securing a decree against her husband as regards her valuable property. Not only this, but he has failed to give full effect to the several directions and consider the various important matters to which the learned Officiating Judicial Commissioner had specially drawn the attention of the Court of first appeal in paras. 10 and 11 of his judgment. I am therefore, constrained to ignore his finding as to the absence of reasonable apprehension and proceed to decide the case independently of such a finding. (After referring to the previous litigations the judgment proceeded.) The defendant's objection to the jurisdiction of the Nagpur Court to try her case having been disallowed by the Court by an order dated 29th September 1923, she was asked to file her written statement on the merits, which she did on 22nd October 1923. Her defence was that she was not the married wife of plaintiff, that she was not bound by the adverse decision in Suit No. 55 of 1915, and that it did not operate as res judicata in this case. She further pleaded in para. 4 that plaintiff was a man of no property and was entirely dependent for his maintenance on his father, that plaintiff and his father and she herself were not on good terms, and that owing to the litigation it was impossible for the parties to live together as husband and wife. She asserted that she was not willing to accept the marriage even if it be held to have taken place. In reply to these allegations the plaintiff in para. 4, of his reply dated 29th October 1923 denied the defendant's assertions and in spite of the defendant's point blank refusal, dated 4th March 1922, to go to live with him as his wife as per Ex. P-4-1, D-4, and evidently falsely misrepresenting facts he stated as follows: It is also denied that she in fact, refuses to accept the marriage. She is personally quite willing to abide by and fulfil her marriage contract. It is only Abdul Sattar who is putting forth these pleas on her behalf.