Raj Mohammad, v. Saeeda Amina Begum, .

1. This second appeal arises out of the suit instituted in the year 1969 on the file of the Munsiff, Raichur, by the plaintiff for a decree for restitution of conjugal rights against the defendant.

2. The parties to the suit are muslims. The plaintiff, who is the husband, is a resident of Raichur. He took the defendant in marriage at Hyderabad on the 17th of May, 1963. Thereafter the defendant came over to Raichur and lived with the plaintiff. By December 1966 two children were born to them. In December 1966 the defendant left for Hyderabad. The case of the plaintiff was that she had gone away to Hyderabad since he was not willing to leave his parents and shift himself to Hyderabad. The defendant's case was that some time after the marriage, the plaintiff began to make demands on her father to provide him with a motor cycle, a gold ring etc., and as the said demands were not complied with, he began to ill-treat her. On coming to know of it, 'her father came to Raichur and took her away to Hyderabad. She did not thereafter return to Raichur. In May 1969, the defendant issued a notice to the plaintiff calling upon him to pay her and her children maintenance. The said notice was replied by the plaintiff. On realising that the defendant was about to sue, the plaintiff issued a notice on 2-9-1969 calling upon the defendant to rejoin him at Raichur. As the defendant was not willing to do so, the Plaintiff instituted the suit for restitution of conjugal rights, out of which this second appeal arises.

3. The trial Court was of the opinion that the plaintiff had ill-treated the defendant during her stay at Raichur and that therefore the defendant was entitled to stay away from her husband. It accordingly dismissed the suit. Aggrieved by the decree of the trial Court, the plaintiff filed an appeal before the learned Civil Judge, Raichur. Although he was of the opinion that the defendant had not established that the Plaintiff 'had treated her with such cruelty as to cause reasonable apprehension in her mind that it would be harmful to her to live with the plaintiff, he found that the defendant was justified in staying away from her husband. He therefore dismissed the appeal. Hence this second appeal. The defendant is absent and unrepresented.

4. It is not disputed that the defendant was staying away from her husband from December 1966. Although it was alleged that the plaintiff had written letters to the defendant calling upon her to return to him prior to 1969, no material was placed before the Court in supported of that part of the case. The learned Civil Judge has found that for the first time the plaintiff called upon the defendant to return to him only after a notice was issued on behalf of the defendant calling upon him to pay maintenance. It is also found by the learned Civil Judge that for nearly three years until the suit was instituted the plaintiff did not pay any amount for the maintenance of his wife and children. He did not even make any attempts to see them at Hyderabad. Within a few months after the suit was instituted, the plaintiff took a second wife. These facts are not in dispute.

5. It was argued by Mr. Manohar Rao Jagirdar, learned counsel appearing on behalf of the plaintiff, that the lower appellate Court was in error in holding that the defendant had Justifiable cause to stay away from her husband, merely because the plaintiff had taken a second wife during the pendency of the suit. It was argued by him that since Muslim Personal Law allowed the Plaintiff to take a second wife, it was not open to the defendant to contend that she would not stay under husband's roof along with a rival wife.

6. Dealing with the kinds of defences which a wife under the Muslim Law can take in a suit for restitution of conjugal rights, the Judicial Committee of the Privy Council observed in Moonshee Buzloor Ruheem v. Shumsoonnissa Begum, (1866-67) 11 Moo Ind App 551 (PC), as follows:

"It seems to them clear, that if cruelty in a degree rendering it unsafe for the wife to return to her husband's dominion were established, the Court might refuse to send her back. It may be, too, that gross failure by the husband of the performance of the obligations which the marriage contract imposes on him for the benefit of the wife, might, if properly proved, afford good grounds for refusing to him the assistance of the Court. And, as their Lordships have already intimated, there may be cases in which the Court would qualify its interference by imposing terms on the husband. But all these are questions to be carefully considered and considered with some reference to Mohammedan Law."

In Anis Begum v. Muhammad Istafa Wali Khan Sulaiman, C. J., observed as follows:

"Their Lordships of the Privy Council in the case of Moonshee Buzloor Ruheem v. Shumsoonnissa Begum, ( 1866-67) 11 Moo Ind App 551 (PC) observed that a suit for restitution of conjugal rights, though in the nature of a suit for specific performance is in reality a suit to enforce a right under the Muhammadan law and the Courts should have regard to the principles of Muhammadan law. The observation of their Lordships was directed to emphasising the point that Courts should not exercise their discretion in complete supersession of the Muhammadan Law, but that in exercise of their discretion they should refer to that law. But the principle was fully recognised that in passing a decree for the restitution of conjugal rights, the Court has power to take into account all the circumstances of the case and impose terms which it considers to be fair and reasonable."

The rule may, therefore, be re-stated as follows:

"There is no absolute right in a husband to claim restitution of conjugal rights against his wife unconditionally; the Courts have a discretion to make the decree conditional on the payment of her unpaid dower debt or to impose other suitable conditions considered just, fair and necessary in the circumstances of each case."

Proceeding further he observed at P. 772 as follows:

"I think that the wife is fully justified in refusing to go and live with her husband so long as there is no undertaking not to keep any mistress in the house."

After referring to the decision of the Privy Council mentioned above, Dhavan, J. in Itwari v. Asghari observed as follows:-

"It follows, therefore, that in a suit for restitution of conjugal rights by a Muslim husband against the first wife after he has taken a second, if the Court after a review of the evidence feels that the circumstances reveal that in taking a second wife the husband has been guilty of such conduct as to make it inequitable for the Court to compel the first wife to live with him it will refuse relief."

Proceeding further, he observed:

"The onus today would be on the husband who takes a second wife to explain his action and prove that his taking a second wife involved no insult or cruelty to the first. For example, he may rebut the presumption of cruelty by proving that his second marriage took place at the suggestion of the first wife or reveal some other relevant circumstances which will disprove cruelty. But in the absence of a cogent explanation the Court will presume, under modern conditions, that the action of the husband in taking a second wife involved cruelty to the first and that it would be inequitable for the Court to compel her against her wishes to live with such a husband."

I respectfully agree with the above observations made by Dhavan, J.

7. As mentioned earlier, between 1966 and 1969, the plaintiff did not provide any maintenance to his wife and the children. His case that be had made attempts to persuade her to rejoin him, has not been believed. What is significant is that within a few months after he instituted the suit for restitution of conjugal rights, he took a second wife. The suit itself was filed after the defendant had called upon the plaintiff to pay her and her children maintenance. In these circumstances, it would not be unreasonable to hold that at any rate after the plaintiff took a second wife, the defendant had reasonable and justifiable cause to stay away from her husband. It has to be borne in mind that the decision in a suit for restitution of conjugal rights does not entirely depend upon the right of the husband. The Court should also consider whether it would make it inequitable for it to compel the wife to live with her husband. Our notions of law in that regard have to be altered in such a way as to bring them in conformity with the modern social conditions. It is not shown that there is any rule which compels the Courts always to Pass a decree in a suit for restitution of conjugal rights in favour of the husband. As long as there is no such rule, it would be just and reasonable for the Court to deny the said relief to the plaintiff if the surrounding circumstances show that it would be inequitable to do so. The lower appellate Court has found that the suit instituted by the plaintiff was not a bone fide one. This fact coupled with the circumstance that the plaintiff had taken a second wife during the pendency of the suit leads to the conclusion that he has disentitled himself to a decree for restitution of conjugal rights. Even granting the Plaintiff has divorced the second wife subsequently the result cannot be different

8.The appeal is therefore, dismissed.

9. Appeal dismissed.