Mst. Ralli vs Kher Din

Passey, J.—This appeal by Mst. Rall Plaintiff arises out of the dismissal of her suit for dissolution of her marriage by the lower appellate Court. She was married to Khair Din Respondent rten years before the suit which was instituted in the Court of the Sub-Judge 2nd Class, Malerkotla on 5-6-1951. For the first four years of their married life, the couple appear to have lived peace-. fully, but an acute cleavage occurred between them thereafter perhaps on account of the husband having married Anr. woman. According to the Plaintiff as her husband became cruel, assaulted her and eventually turned her out of his house; she had to seek the protection of her parents, with whom she lived for about four years all the time hoping for a compassionate and regardful. change in her husband''s attitude but found that instead of his callousness towards her melting down the chances of a reconciliation had become remote. Khair Din did not make any arrangement for her subsistence nor did he discharge any other obligation arising out of the matrimonial relationship. Mst. Ralli was thus completely neglected and, in fact deserted. She then filed a petition u/s 488, Code of Criminal Procedure, for maintenance against which one of the defenses taken up by Khair Din was that she was a woman of bad character. He led no evidence to substantiate that accusation, but Mst. Ralli remained unsuccessful in those proceedings on other grounds.

On 5-8-1951 she brought the present suit for dissolution of her marriage alleging. desertion and cruelty by the husband and also that he had brought a false charge of adultery against her. The Defendant put in his written statement on 2-8-1951; but before that was done he had on the same day filed an application in the trial Court confessing that the charge of conjugal in fidelity brought by him against Mst. Ralli was no doubt, false and stating further that he with drew it unconditionally. The same expression of regret was repeated in the written statement. The trial Court drew up the following two issues:

Whether the Defendant maltreated Plaintiff and turned her out of his house and as such she is entitled to get a decree for dissolution of marriage? O. P.

Whether the Defendant has withdrawn the charge of unchastity against the Plaintiff''? If so, what is its effect on the suit? O. D.

and while the first issue was decided in favour of the Defendant he failed on the 2nd issue with the result that the suit was decreed with costs. The trial Court held that the repudiation of the charge of unchastity levelled by him against his wife was not bona fide and it could not, therefore, although made before the commencement of the proceedings in the suit be an effective shield against the right of the wife to have the nuptial agreement broken through Court. The learned District Judge on appeal dismissed her suit holding that as Khair Din had retracted the imputation before filing the written statement the dissolution of his marriage could not be called for. He also disagreed with the trial Court on the mala fide nature of the repudiation.

It is an undisputed principle of the Moham-madan law that if the husband brings a false '' charge of adultery against his wife, the latter becomes entitled to sue for having her marriage put an end to. In such a suit the onus of proving that the charge was false is always on the Plaintiff and the suit would be decreed only if she established the falsity of the allegation against her chastity and not otherwise. The learned Counsel for the Respondent accepts that in the present case the onus has been discharged by production of the grounds of the reply submitted by Khair Din in the 488 Code of Criminal Procedure proceedings. The defence urged in the present suit was that the Defendant had before the settlement of issues or even before the filing of the written statement withdrawn the accusation. It need hardly be emphasized that the retraction itself was proof of the admission of the charge having been made and of its having been made falsely. But he did not urge that the imputation had been made in good faith or on information which he honestly thought might not be without foundation. Ordinarily when a husband makes a false charge of unchastity against his wife and shows no penitence for having done so, the case becomes one for the marriage bond being broken up by the Court. A suit for dissolution of marriage can, however, be appropriately opposed if the husband can show that he had honestly'' repudiated the false allegation before the suit had proceeded to trial. The question in that case would be whether the retraction aims at defeating the suit only or is made with a view to atone for and wash off the sin of having cast the slur of unchastity on the wife falsely and with a view to revive and re-establish cordiality.

I am unable to agree with the contention of the Respondent ''s counsel that once it is proved that the husband has withdrawn the charge, however, recklessly or irresponsibly made the Courts are bound to accept it as enough to save the marriage from being dissolved. The season for my doing so Is that it appears to me that the sole object of allowing the husband to retract is, to give him an opportunity to be genuinely remorseful and to enable him to bring to life again the regard and love with which they lived before the disrupting charge was leveled, If, there-fore, the husband in his unabated vindictiveness wants, to save the marriage only with the ulterior object of oppressing and harassing the wife so that she, may lead a life of misery worse than widowhood and with that object repudiates the false accusation even at the early stages of the suit Courts would not only be extremely thoughtful but would not hesitate to pass a decree for dissolution. In - Shamsunnessa Khatun Vs. Mir Abdul Mannaf, it was held by Mohamad Akram J. that the purpose behind the principle of retraction is to give the husband a locus penitential before the marriage is dissolved and the object is to re-establish cordial relationship between the husband and the wife. The retraction, therefore, must be made bona fide and not to serve as a device for defeating the suit. I am in respectful agreement with this view.

The only thing, therefore, that requires to be determined in this. case is whether the retraction resorted to by Khair Din in defence to the suit. of his wife was made bona fide or in order to prolong her agony by advancing that plea. It is evident that for 10 years preceding the suit (now years) Khair Din did not provide her with .shelter and the bare necessities of life even. He has consistently and deliberately neglected to maintain her and when she applied for maintenance u/s 438, Code of Criminal Procedure he resisted her prayer on 25-8-1943 with the cruel allegation that she was not chaste. Throughout the proceedings u/s 488, Code of Criminal Procedure which lasted for four months thereafter and even after the closure of those proceedings, he never felt remorseful and did not communicate any regret to her. In his written statement in the present suit he did not state that he was prepared to maintain her or to take her with him. The conduct of Khair Din towards her throughout the last 12 years has been of gross indifference and neglect amounting to oppression and desertion. ''For his behaving In that manner there should be little wonder as he has got Anr. wife. He has (made?) forlorn the first one and yet was that by his retraction he should save judicial separation coming into effect. The evidence on the record, satisfies me that the plea of retraction which has been made mala fide should not prevail in this case. I, therefore, accept the appeal and decree the Plaintiff''s suit with costs'' throughout.

Teja Singh, C.J.

I agree.