Fathimath Sunaina Subair v. Saleef K.V.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN THURSDAY, THE 20TH DAY OF JUNE 2019 / 30TH JYAISHTA, 1941** **Mat.Appeal.No.696 of 2017** **AGAINST THE JUDGMENT IN O.P. NO.476/2016 of FAMILY COURT, THALASSERY DATED 28-03-2017** ## **APPELLANT/RESPONDENT :** **FATHIMATH SUNAINA SUBAIR, AGED 24 YEARS, D/O.SUBAIR, SAL SABEEL, A.N.MADAPEEDIKA, P.O.PARAL, THALASSERY, KANNUR DISTRICT.** **BY ADVS. SRI.K.R.AVINASH (KUNNATH) SRI.ABDUL RAOOF PALLIPATH** ## **RESPONDENTS/PETITIONER :** **SALEEF K.V., AGED 33 YEARS, S/O.ASHRAF K.P., SAMIYA MANZIL, VENGAD P.O., KEEZHALLUR, KANNUR-670612.** **BY ADVS. SRI.LAL K.JOSEPH SRI.A.A.ZIYAD RAHMAN** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 21.05.2019, THE COURT ON 20.06.2019 DELIVERED THE FOLLOWING:** **Mat.Appeal.No.696 of 2017** **2** ## **JUDGMENT** ## **ANNIE JOHN, J.** This appeal is preferred against the judgment in O.P. No.476 of 2016 dated 28.03.2017 passed by the Family Court, Thalassery. The appellant herein is the respondent in the above O.P. and the respondent is the petitioner. The above said petition has been filed by the respondent, who is the husband of the appellant, for restitution of conjugal rights under Section 7(1)(a) of the Family Courts Act. The marriage between the appellant and the respondent was solemnized on 1.08.2010 as per the Mohammedan Law and they were living together as husband and wife. Out of their wedlock, two children were born. 2. The learned counsel appearing for the appellant contended that due to the persistent interference of the respondent's mother into the family life of the petitioner, the respondent is now living separately from the petitioner. The respondent is liable to perform her marital obligation by living with him. Therefore, he has filed the above O.P. for getting a **Mat.Appeal.No.696 of 2017** **3** decree for restitution of conjugal rights. 3. The respondent had filed a counter stating that she had filed a petition for divorce and the same was allowed ex parte. Subsequent to that, the respondent has filed the above O.P. as a counter blast to the divorce petition filed by her on the ground of cruelty and for non payment of maintenance. The respondent is a person of an indifferent character. He lost his temper on trivial reasons and he used to beat her and use rubbish words, besides his suspicious character. He did not even pay for the medical expenses for the delivery of the child. He always kept the respondent and children under lock and key inside the house and removed her mobile phone, TV connections etc. and kept her in isolation. Therefore, the petitioner prays for dismissal of the petition. 4. The respondent herein was examined as PW1 in the lower court and Exts.A1 to A23 were marked. The petitioner was examined as RW1 and Exts.B1 to B3 were marked from her side. 5. The learned counsel contended that, the court below, without ascertaining the law and the evidence in proper **Mat.Appeal.No.696 of 2017 4** perspective, allowed the petition. The court below failed to consider the fact that the appellant had already filed a petition for divorce as O.P. No.228 of 2016 which was once allowed as the respondents remained ex parte and the same is now pending consideration before the court after the ex parte order was set aside. The grounds urged for interference of this Court is that, the finding of the court below that since the appellant and the respondent are residing in an independent villa, he is justified in locking the room while he is leaving the house when his wife and child are alone, is perverse and incorrect. Further, the lower court ought to have found that it was due to the cruelty meted out against the appellant, her life has become unjustifiable with the respondent and she had filed a petition for divorce. The court below has committed illegality in allowing the petition for restitution of conjugal rights. 6. Now the point to be considered is whether the finding entered by the Family Court that there was no cruelty on the side of the respondent so as to live separately from him by the appellant is justifiable or not. 7. It is an admitted fact that the appellant and **Mat.Appeal.No.696 of 2017 5** respondent are husband and wife and their marriage was solemnized on 1.8.2010 as per the Mohammedan Law. It is also an admitted fact that two children were born in that wedlock. The case of the respondent is that he was employed in gulf country and was living along with the appellant and children there. The respondent's father is doing business in gulf country and he used to visit them at the respondent's residence and the respondent and the appellant used to visit the respondent's father's house also. The appellant's mother had directed the respondent to reside at her house permanently by neglecting the respondent's parents and due to the persistent interference of the appellant's mother into the family life of the respondent, the appellant started living separately without any justifiable reason. According to the respondent, the appellant is liable to perform her marital obligation by living with him. When the respondent was employed in gulf, he made earnest effort to take back his wife and children, but all his efforts were in vain. The respondent came back to India on 30.07.2016, so as to take back the appellant and children. Even after that also, the appellant was reluctant to start living with the respondent. Therefore, the **Mat.Appeal.No.696 of 2017 6** respondent has filed O.P. No.476 of 2016 for getting a decree for restitution of conjugal rights. On the other hand, the appellant's case is that she has filed a petition for divorce on the ground of cruelty and for non payment of maintenance. Under these circumstances, the respondent has filed the O.P. for restitution of conjugal rights. 8. Learned counsel for the appellant argued that the lower court, without considering the evidence on record, granted a decree for restitution of conjugal rights, but actually there is no provision enacted for filing a petition for restitution of conjugal rights. Learned counsel for the appellant also argued that the lower court has failed to consider that there was cruelty on the part of the respondent and therefore the appellant was reluctant to live along with the respondent. Again, he has argued that the appellant had filed a petition for divorce before the Family Court alleging cruelty against the respondent. Now, due to the passing of the decree in the present O.P., the appellant is restrained from raising the plea of cruelty before the Family Court and the findings entered in the impugned decree against the appellant will tantamount to res judicata. **Mat.Appeal.No.696 of 2017** **7** 9. In this connection, we have gone through the findings entered by the court below. The respondent husband has given evidence before the Family Court in order to get a decree of conjugal rights by producing 23 documents which were marked as Exts.A1 to A23. The respondent has given evidence to the effect that he was a lovable husband and the appellant started residing separately without any reasonable excuses. He further made several attempts to bring her back to the matrimonial relationship but she was reluctant to perform her marital obligations. When the respondent was examined as PW1, he had given evidence to the effect that it is the appellant who is residing separately without any justifiable grounds. Learned counsel for the respondent/husband has argued that even though he has given evidence to the effect that there was no cruelty on the part of the husband, it was not challenged in cross examination and hence the evidence of PW1 (respondent/ husband) is to be treated as admitted. 10. Learned counsel for the respondent has pointed in paragraph 4 of the chief affidavit that, PW1 has deposed that he is a husband who had led a happy married life along with his wife and children who had been taken to gulf country **Mat.Appeal.No.696 of 2017 8** where he was working. His further case is that he still desires his wife and children to be with him. According to the respondent's counsel, these facts have not been challenged in cross examination. Further, in paragraph 5 of the chief affidavit, he has affirmed that he has been asked by his mother-in-law to reside permanently at the petitioner's house and that it was because of the continuous interference from the part of the mother-in-law, the appellant started living separately without any justifiable reasons. According to the respondent, the appellant is duty bound to perform her marital obligations and the conduct on the part of the appellant in living separately from the respondent is not justifiable also. The main ground projected by the Family Court is that whatever evidence the respondent/husband given, was not challenged by the appellant. Those aspects stood unchallenged. He has also pointed out a decision in **B.C. Dominic v. Suryasamudra Holiday Resorts (P) Ltd, & Ors. [2016 (3) KLJ 561]** wherein, it was held that, the failure of a party to put his case to the opposite party while the later is in the witness box amounts to his acceptance of evidence adduced by the opposite party. So, the lower court **Mat.Appeal.No.696 of 2017 9** satisfied about the statement made by the respondent and also held that the burden of proof on the part of the respondent was discharged and the burden is upon the appellant to establish that she was residing separately due to reasonable excuses. The learned counsel for the appellant argued that, due to the cruelty meted out on the part of the respondent/husband, the appellant started living separately, for which he has pointed out that while she was living along with respondent at gulf country she was prevented from visiting her own relatives and she was locked up by the respondent while he used to go for employment. The learned counsel for the appellant has further argued that the respondent/husband had produced some photographs in order to establish that the appellant was happy with the respondent during their life time. It was also argued that the production of photographs itself is not sufficient to prove that the appellant was living happily along with the respondent. Exts.A15 to A23 are the series of photographs alleged to have taken while they used to visit several places in Dubai and UAE and while visiting malls, supermarkets etc. The appellant, while examined as RW1, admitted that in all the photographs, she **Mat.Appeal.No.696 of 2017 10** was in a happy mood and on the strength of Exts.A15 to A23, the Family Court held that it was an indication that the appellant had been leading a peaceful life with the respondent. It is an admitted fact that, it was in the year 2014, the appellant started residing separately. The definite case of the appellant is that, due to the ill treatment and cruelty on the side of the respondent, she started residing separately. It was also alleged that the respondent has not provided any maintenance also to her. Later on, the Family Court has held that the appellant is not yet divorced. She has not initiated any legal proceedings before any Court alleging the cruelty or nonmaintenance. Accordingly, the Family Court held that whatever reasons mentioned by the appellant regarding the cruelty is without any grounds. Now, it is to be borne in mind that, in the written statement, the appellant has raised several grounds so as to establish cruelty on the part of the respondent/husband. According to the appellant's counsel, the fact that the respondent/husband used to lock the house as he was suspecting his wife is not admitted by him. Whereas, his case is that it is an independent villa the fact of which was admitted by RW1 also and the respondent used to leave the **Mat.Appeal.No.696 of 2017** **11** house at 8.00 am and come back only at 11 p.m. There was justification on the part of the respondent that he used to lock the house because his wife and children were alone in the house. After analyzing the evidence on both sides, the lower court held that there was no evidence to prove that the appellant has left the matrimonial residence with any justifiable reasons. It is true that the appellant has not filed any complaint against the respondent especially under Section 498A of the Indian Penal Code. It is the case of the respondent/husband that from 2014 onwards, the appellant failed to perform her matrimonial obligations. According to the appellant, she has filed a petition for getting divorce. Now the only point arises for consideration is whether a muslim is entitled to file a petition for restitution of conjugal rights. Section 281 of the Mulla's Principles of Mahomedan Law says about the Suit for restitution of conjugal rights. Section 281(1) reads thus, “ Where a wife without lawful cause ceases to cohabit with her husband, the husband may sue the wife for restitution of conjugal rights.” 11. The valid defence on the side of the appellant/wife is that, it is unsafe for her to come back to the husband's domain **Mat.Appeal.No.696 of 2017 12** on the strength of cruelty meted out by her from the husband. It may be true that the gross failure by the husband of the performance of the obligation, which the marriage contract imposes on him for the benefit of the wife, might, if properly provide, afford good grounds for refusing him the assistance of the Court. Here, the appellant has raised a defence that she was subjected to cruelty and was denied maintenance. She has already filed a petition for divorce as per the provisions of Dissolution of Muslim Marriages Act 1939. Section 2 (ii) of the Act would entitle the muslim woman to get divorce on the ground that the husband has neglected or has failed to provide for her maintenance for a period of two years. Section 2 (viii) (a) reads as follows : “Section 2 : **Grounds for decree for dissolution of marriage : -** A woman under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely :- ***** (viii) that the husband treats her with cruelty, that is to say :- (a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical illtreatment, or **Mat.Appeal.No.696 of 2017** **13** So the learned counsel for the appellant has stressed on the point that the O.P. filed by the respondent/husband for getting restitution of conjugal rights could not have adjudicated separately since the appellant/wife has filed a petition for getting a decree for divorce. He has also pointed out that since the finding entered by the Family Court in the impugned judgment regarding the fact that there was no cruelty on the part of the respondent/husband, the appellant/wife is prevented from taking the plea of cruelty in the petition filed for decree of divorce. It is true that passing of a decree for restitution of conjugal rights will enable the appellant to prosecute the petition filed for dissolving the marriage. It was also pointed out that the appellant filed a petition for decree for divorce prior to the filing of the petition for restitution of conjugal rights. In the written statement, the appellant stated that she has filed a petition for getting divorce from the respondent/husband and in order to counter blast the same, the respondent/husband has filed a petition for restitution of conjugal rights. The lower court ought not to have disposed of the petition filed for restitution of conjugal rights since the **Mat.Appeal.No.696 of 2017** **14** petition for divorce filed by the appellant was pending. The respondent's counsel has admitted that the evidence adduced by RW1 was not challenged in cross examination. Therefore, the lower court ought not to have held that there was no cruelty on the part of the respondent. So, we find that there is some justification on the arguments advanced by the learned counsel for the respondent. The fact that there was no cruelty on the part of the respondent/ husband will definitely prevent the appellant from giving a petition for divorce forever because the finding in the impugned judgment will operate as resjudicata. The Dissolution of Muslim Marriages Act 1939 was enacted only for the purpose of saving a Muslim woman and the provisions enacted in the above said Act is only for the Muslim women to get divorce from her husband. The personnel law permits the Muslim Man for getting divorce by pronouncing Talaqnama, but there is no provision for the women for getting divorce from the man except through the provision of Dissolution of Muslim Marriages Act 1939. So definitely, the impugned judgment will prevent the appellant from getting divorce from the respondent/husband for ever. Therefore, we find that, both these petitions i.e, the petition **Mat.Appeal.No.696 of 2017** **15** for divorce as well as the petition for restitution of conjugal rights would have been adjudicated by a joint trial. We find that there is reasonable grounds on the part of the appellant to challenge the decree of the Family Court. Accordingly, we are inclined to set aside the impunged judgment. In the result, the appeal is allowed and the impugned judgment is hereby set aside. The concerned Family Court is hereby directed to adjudicate the petitions afresh after disposal of O.P. filed for divorce by appellant/wife. Sd/- **K. HARILAL, JUDGE** NS Sd/- **ANNIE JOHN, JUDGE** /True Copy/ P.A. To Judge