Gulam Abdul Nisar vs Meharunnisa P.M.

S.P. Chaly, J.—1. This appeal is preferred against the judgment of the Family Court, Kasaragod in O.P. No. 405 of 2010 dated 20.10.2011 by the petitioner. The appellant and the respondent are husband and wife respectively. As per the impugned judgment, the Family Court has declined the relief of restitution of conjugal rights to the appellant.

Brief facts required for disposal of the appeal are that: The marriage between the appellant and the respondent was contracted on 17.07.2005 as per the custom prevailing in Muslim community. After the marriage, the appellant and the respondent resided together as man and wife in the paternal house of the appellant at Mangalore and two children are born in the said wedlock. On 17.04.2006, the appellant took respondent to Mangalore for delivery and she was staying at the parental house of the appellant and from there she was admitted to the hospital for delivery. It is the contention of the appellant that with respect to the delivery of the first child, the parents of the respondent did not play any role.

It is further contended that the life of the appellant and the respondent was very happy and whenever time permitted they used to go for picnic to far away places like Mysore, Bangalore etc. and the appellant was very caring about his family. The minor child named Gulam Moidin Nooh was admitted in Mount Carmel Central School, Mangalore during the year 2010-2011. The respondent during that time sought custody of the minor boy by filing O.P. No. 83 of 2010 and she secured the custody of the child on 16.10.2010. The appellant contends that till that time, the minor boy was extremely happy with the father and he was good at his studies at Mangalore.

It is also contended by the appellant that, rift in the marital relationship started during marriage of the younger sister of the respondent. The appellant and the respondent could not participate in the picnic arranged to Bekal Fort on 21.07.2009 by the sister of the respondent and husband and thereafter the husband of the elder sister of the respondent used to abuse and insult the appellant without reasonable cause. That apart, it is contended that even though the appellant made several attempts to get the company of the respondent for leading a happy marital life, same did not materialise due to the stand adopted by the respondent and her family members. Mediation attempt made was also failed. The appellant bonafidely needed the company of the respondent and children born in the wedlock and thereupon the application is filed by him for restitution of conjugal rights.

That apart, it is contended by the appellant that the situation was made more worse since the respondent filed a complaint against the appellant under Sec.498A of IPC.

The respondent has filed counter in the Original Petition admitting the marital relationship and the children born out of the wedlock, but contending that, from the beginning stage itself, she was subjected to cruelty both mentally and physically by the appellant. It is also contended by her that at the time of marriage, the parents of the respondent gave 120 sovereigns of gold ornaments and an amount of Rs. 4 lakhs to the appellant, that the appellant further demanded 150 sovereigns of gold and an amount of Rs. 10 lakhs. That apart it is also contended by the respondent that the appellant is a drunkard and a drug addict. He used to come late at night fully intoxicated and he was in the habit of demanding the respondent to accompany him and dance with him in the bar. It is also contended that, father of the appellant owns a gun and whenever the appellant became violent, he used to pick the gun and point the gun towards her chest and head and threatened her to get the money and gold. It is further alleged that appellant used to kick the respondent on her stomach mercilessly. On 29.09.2008 appellant created a scene in the respondent''s house by assaulting the respondent, demanding dowry. It is also contended that the appellant did not take care of the respondent, while she was admitted in the hospital at Kanhangad for delivery of the second child. It is also contended that the appellant has forcibly taken away the elder child from the custody of the respondent and thereupon she was constrained to file O.P. No. 83 of 2010 and this court in a writ petition directed the police to trace the child and produce before the court below and finally on 16.10.2010, the child was traced out and handed over to the respondent. Above all these aspects, the respondent contended that she apprehends that her life will be in danger at the hands of the appellant and thereupon she sought dismissal of the petition for restitution of conjugal rights. The above Original Petition was tried along with M.C. No. 16 of 2011 and a common order is passed. With regard to the contentions in the Original Petition in question, the sole point raised by the Family Court for consideration was whether the petitioner/husband is entitled for restitution of conjugal rights?

The appellant was examined as PW1 and the respondent was examined as RW1. No documents were marked on either side. After evaluating the evidence tendered by the parties and appreciating the pleadings, the Family Court has come to a conclusion that appellant is not entitled to get restitution of conjugal rights.

Heard learned counsel for the appellant and the respondent.

The main contention advanced by the learned counsel for the appellant is that the pleadings and the evidence tendered by the respondent itself is a conclusive proof to arrive at a finding that the appellant and the respondent were leading a happy and contented marital life and there was no occasion for the respondent to leave the matrimonial home. Learned counsel has taken us through the evidence tendered by PW1 as well as RW1 and relying on the deposition of the respondent in cross-examination, it is contended that the respondent has admitted that they used to go for picnic to various places and that itself is a testimony and a connecting link to establish that the parties were leading a happy marital life. Therefore, it is contended by the counsel that respondent has left the matrimonial home without any matrimonial discord or disharmony by and between the appellant and the respondent. That apart, it is contended that going by the evidence tendered by the respondent, it is clear that the appellant and the children were maintaining a healthy and harmonious relationship and therefore if there was any serious marital discord and disharmony, the children would not have been, so fond of the appellant.

On the other hand, learned counsel for the respondent contended that the pleadings and evidence of the respondent are very clear with regard to the physical and mental cruelty inflicted by the appellant to the respondent and the respondent has left the matrimonial home since the cruelty meted out by the appellant was intolerable. Therefore, there was every reasonable apprehension in the mind of the respondent that at any moment her life was in danger and therefore as of right, she was entitled to leave the matrimonial home and live in a safe haven along with her parents.

The Family Court after appreciating the deposition of PW1 has come to a finding that there were several cases filed by the respondent against the appellant and that itself is a testimony to establish that there was total disharmony and marital discord in the life of the appellant and the respondent entitling the respondent to leave the matrimonial home. In such circumstances, the Family Court was of the considered opinion that the contention raised by the appellant that there was no enmity between the parties cannot be believed. Family Court also found that when PW1 was asked a question during cross-examination with regard to ill-treatment of the appellant demanding more dowry, the appellant has kept quiet. That apart, the Family Court has found that for the two years preceding the examination of the appellant as PW1, no maintenance was provided by the appellant to the respondent and children. That apart, it was also found by the Family Court that even though the second child is aged six years, the appellant does not know the name of the school in which the child is studying. Family Court has also found weight in the evidence tendered by PW1 himself in cross-examination that he did not make any delivery expenses to the respondent.

In contra-distinction to the evidence tendered by the appellant, the respondent has deposed that on 21.09.2009, the appellant has taken her to her parental house and deserted her there. It was also deposed by the respondent that while they were living together there was constant ill-treatment from the side of the appellant physically, demanding more dowry and she had injuries on the legs, chest and head. The respondent even deposed that due to the physical cruelty employed by the appellant on the respondent she has suffered physical disability to teeth and that apart, the appellant used to compel her to consume alcohol. Above all these, she has tendered evidence with regard to the various kinds of mental cruelty inflicted by the appellant like pointing the gun at her, at times when the appellant became violent. Above all these, respondent has deposed that she is afraid of the appellant because of his tendency to inflict injuries both mental and physical and that there is severe enmity between the two families due to various litigations, and therefore she apprehends danger from the side of the appellant. The Family Court has given due weight to the evidence tendered by the respondent and brushed aside the trivial contentions raised by the appellant with regard to the case put forth by him. The Family Court also did not find any weight with regard to the deposition made by the respondent during cross-examination that she has not filed any complaint before police against the appellant with respect to the physical and mental cruelties exerted by the appellant against her. That apart, the Family Court after appreciating the evidence of PW1 has come to a categoric finding that the attempt of the appellant by filing the petition for restitution of conjugal rights is with the intention of securing the custody of children and therefore it was found that the genuineness of filing of the application for restitution of conjugal rights itself is a doubtful exercise, without any sincerity and honesty. It was thus finding so, the Family Court has dismissed the application for restitution of conjugal rights.

Having appreciated the rival contentions, we are of the considered opinion that apart from pointing out the minor discrepancies in the evidence of RW1 and resisting certain aspects with regard to the non-filing of complaint before the police against the cruelty alleged by the respondent, an attempt was made to establish that the cruelty so alleged by the respondent are untrustworthy and unbelievable. It is true that the respondent has not filed any complaint and that was only deposed by her during cross-examination. But at the same time, we find that RW1 has deposed that they resided together for a period of 4 years and therefore non-filing of any complaint before the police while the parties were residing together cannot be taken as a ground to disbelieve the version put forth by the respondent. It can only be seen as a hopeful aspiration on the part of the respondent that the injuries inflicted by the appellant both physical and mental may mellow down during the course of time and especially when children are born and they are brought up and taken care of by the parties. According to RW1, the cruelties of the appellant are to such an extent that, she is unable to live with the appellant.

Therefore, merely because, when physical and mental injuries were inflicted, the respondent has not made any complaint to the police, will not by itself create any leverage in favour of the appellant to contend that respondent has left the matrimonial home without any reasonable cause. However, we also find from the pleadings and evidence tendered by the respondent that appellant was in the habit of consuming alcohol and other drugs. Even though the same is disputed by the appellant, he has not made any further explanation with regard to the same. Therefore, the attempt of the appellant with respect to his endeavour to prove that he did not consume alcohol and inflicted injuries, he has not stated anywhere in the pleadings or in the deposition that he was not in the habit of consuming alcohol. Apart from all these aspects, what is more disturbing is several litigations were pending between the parties at the time of filing of this application for restitution of conjugal rights and therefore the evidence tendered by the appellant that there is no enmity by and between the appellant and the respondent cannot be believed at all. We find force in the contentions put forth by learned counsel for the respondent that when several litigations are pending between the parties, it is only natural that the respondent becomes apprehensive of the adverse situations and live separately from the husband. There is nothing wrong in the respondent apprehending danger from the appellant and his family members when they have fell apart and disputes remaining between the parties.

By appreciating and evaluating the circumstances, pleadings and evidence tendered by the parties in the Original Petition, we are unable to arrive at a conclusion different from the one arrived at by the Family Court. The learned counsel for the appellant, even though strenuously and stoutly argued that there are no circumstances existing between the parties to the litigation so as to cause any reasonable apprehension in the mind of the respondent to leave the matrimonial home, the evidence shows otherwise.

However, we are unable to reach any such conclusion as put forth by the learned counsel for the appellant. Apart from the same, we do not find any illegality, impropriety, other legal infirmities or incorrectness warranting interference in the factual findings rendered by the Family Court. Moreover, the Family Court has found more weight with the evidence tendered by the respondent. We also feel that from the circumstances admitted by the appellant himself, it is clear that several litigations were pending and the respondent was fully justified in leaving the matrimonial home and staying apart from the appellant at a place of her own choice. Therefore, we do not find any reason to interfere with any of the findings rendered by the Family Court.

Resultantly, we have to reach the irresistible conclusion that appellant has not made out any case warranting interference of this court by exercising the appellate power conferred under the Family Courts Act. Therefore, the appeal fails and accordingly the same is dismissed.