1. This is the defendant's 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 Nandwara. The suit was decreed by the learned Sub-Judge and on appeal the decree was affirmed by the learned District Judge Bara-mulla.
2. When this case came up for hearing before my Lord the Hon'ble Chief Justice a question was posed whether a suit for restitution of conjugal rights can be maintained at instance of a Khana Damad. It being a common ground in the case that Mohd. Khan was brought as Khana Damad for Mst. Jani.
3. 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 201 and 204 of 2003 by Ghose, C.J and Masud Hussan, J. who observed that a Khana Damad was not entitled to bring a suit for restitution of conjugal rights as the custom of making a Khana Damad prevalent in the Valley abrogated the Muslim Law of marriage and it imposed an obligation upon the husband to reside in the bride's father's 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 Khana Damad. 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 a restitution of conjugal rights to the extent indicated above.”
4. 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 29-12-55 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 (sic). 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.
5. The learned counsel for the appellant has contended before me that there is no reason why this document should not be given effect to when it is established that the respondent has infringed the conditions of this agreement and in these circumstances the marriage of the couple stood as dissolved. Counsel for the respondent has, however, argued that this is not the case. The agreement is unstamped and therefore is inadmissible in evidence.
6. I have considered the arguments advanced in the case.
7. The argument that the agreement is not duly stamped and is therefore inadmissible in evidence has got no merit in view of the fact that the document has already been admitted in evidence. Under Section 36 of the Stamp Act a document once received in evidence its admissibility cannot subsequently be called in question. However, there is considerable force in the argument of the learned counsel for the respondent that not only the defendant has failed to establish that the plaintiff has been guilty of infringement of the conditions of the agreement but also the very agreement is opposed to public policy and therefore cannot be given effect to. In my view the conditions provided in the agreement are such that they cannot be said to be wholesome and conducive to the best spirit underlying the marriage. A Khana Damad is not to work as a servant in the house of his in laws. He is not a serf that he has to remain at the beck and call of his father-in-law and mother-in-law. It is true that as a son he has to respect them and render services according to his capacity but at the same time if he fails to do that should not bring within its wake the dissolution of matrimonial ties with his wife. In my opinion breach of this condition cannot be said to operate as a divorce and would not operate as a dissolution of marriage between the couple.
8. I am, therefore, of the view that the Courts below have taken a correct view of the matter. Issue No. 3 has also been decided in favour of the plaintiff.
9. For the foregoing reasons the plaintiff has been found entitled to a decree for restitution of conjugal rights in his favour. The judgments and the decree passed by the Courts below are, therefore, upheld. I Page: 156see no force in this second appeal which is hereby dismissed. But, in view of the circumstances of the case I leave the parties to bear their own costs.
10. Appeal dismissed.
Comments