Sujit Narayan Prasad, J.
Prayer:
1. The instant appeal under section 19(1) of the Family Courts Act, 1984 is directed against the judgment dated 28.08.2023, decree signed on 05.09.2023, passed in Original Suit No.451 of 2021 by learned Principal Judge, Family Court, Bokaro whereby and whereunder the petition filed by the petitioner-husband (respondent herein) under Section 281 of the Mohammedan Law, for restitution of conjugal rights has been allowed.
Factual Matrix
2. The brief facts of the case of the petitioner/husband (respondent herein) as narrated before the learned Family Court, is that his marriage with the respondent (appellant herein) was solemnized on 25.11.2017 as per Muslim rites and custom at Bokaro.
3. After marriage, they lived together as man and wife. They have no issue from the wedlock. It is the case of the respondent/ plaintiff/ husband that the appellant/ defendant/wife lived few days properly in her matrimonial home. After that, she on some pretext or the other, insisted to go to her parents’ home, for which she became aggressive. She does not want to live in his joint family. She pressurized him to live separately from his family, for which she used to quarrel.
4. On 14.05.2019, she sent her all belongings with her uncle, including all ornaments and on 15.05.2019, she on her own will went to her parents’ home with her father, for which husband had made online information to Chas Police Station on the same day.
5. After mediation in Mahila Thana, Bokaro, on 19.05.2019, they started living separately in a rented house. In spite of that there were no changes in her behaviour. Lastly, on 09.02.2021, she again went to her parents’ home with her father. After that, he left no stone unturned to bring her back but she denied.
6. On 13.02.2021, she had filed Bokaro Mahila P.S. Case No. 08 of 2021 against them under Dowry Prohibition Act, which is still pending. In spite of living separately with the respondent, from his family members, she denied to live with him. He is still ready to keep her with him with full honour and dignity.
7. Consequent to issue of notice, wife/defendant (appellant herein) had filed written statement wherein she had stated that she wanted to live with her in-laws but her in-laws did not want to keep her with them. The plaintiff (respondent herein) assaulted her brutally in presence of her uncle on 14.05.2019 and even tried to kill her on 15.05.2019, for which she had filed Mahila P.S Case No. 08 of 2021. The Petitioner (respondent herein) hatched conspiracy, tried to kill her on fire, confined her in a room. The Petitioner/husband is man of cruel nature. She apprehends her life in the hands of the petitioner. Therefore, the instant suit of the Petitioner is liable to be dismissed.
8. On the basis of pleadings of the parties, following issues have been framed by the learned Family Judge for just and final decision of the case :-
(i) Is this suit maintainable in its present form?
(ii) Whether the petitioner has valid cause of action for the suit?
(iii) Whether the petitioner has been able to prove that the respondent has withdrawn herself from the society of the petitioner without any reasonable cause?
(iv) Whether the petitioner is entitled for Decree of restitution of conjugal rights against respondent?
(v) Whether the Petitioner is entitled to get the relief as prayed for?
9. In order to substantiate his case, the petitioner (respondent herein) has been examined as PW-1.
10. Further, the documentary evidence has been produced on behalf of the petitioner (respondent herein), i.e.
| Sl.No. | Exhibit Number | Description |
| 1 | Marked – X for identification | Photocopy of Award of Lok Adalat |
| 2 | Marked – X/1 for identification | Photocopy of application addressed to the S.P., Bokaro |
| 3 | Marked – X/2 for identification | Photocopy of FIR Balidih P.S. Case No.51 of 2021. |
| 4 | Marked – X/3 for identification | Photocopy of photograph of respondent with the petitioner. |
12. The respondent-wife (appellant herein) has also filed documentary evidence on her behalf, i.e., –
| Sl.No. | Exhibit Number | Description |
| 1 | Marked – Y for identification | Photocopy of compromise paper dated 19.05.2019. |
| 2 | Marked – Y/1 for identification | Photocopy of FIR No.8 of 2021 |
| 3 | Marked – Y/2 for identification | Photocopy of application dated 15.05.2019 by Bimla Hansda, A.S.I., Mahila P.S. Bokaro,addressed to the Civil surgeon, Sadar Hospital, Bokaro. |
14. The aforesaid judgment by which the decree for restitution of conjugal rights has been granted in favour of the petitioner-husband (respondent herein) is under challenge by filing the instant appeal.
Submission advanced on behalf of the appellant-wife
15. Learned counsel appearing for the appellant-wife has taken the following grounds in assailing the impugned judgment:
(i) There is an apparent error in the impugned judgment, since, each and every aspect of the matter has not been taken into consideration and the learned trial Court has failed to take into consideration the evidences available on record.
(ii) It has been contended by the learned counsel for the appellant-wife that the learned Family Judge has committed serious illegality in passing the impugned judgment.
(iii) It has been contended that the respondent-husband has not taken sincere steps to restore his married life, rather, committed his wife with torture and cruelty leading to filing of criminal case being Mahila P.S Case No. 08 of 2021.
(iv) The respondent-husband has neglected his wife by all means. He is a person of very rude nature.
(v) The learned family court has not appreciated the fact that the appellant was subjected to cruelty by the petitioner/husband and there was valid reason for denial of conjugal life with the husband/petitioner.
(vi) The learned court has also not appreciated the fact that the husband/petitioner, on false assurance, compromised the previous case and again indulged in said activities.
(vii) The learned court below has failed to take into consideration that the appellant has apprehension of being killed at the hands of her husband/petitioner.
(viii) The learned Family Judge ought to have considered the filing of criminal case by the wife which itself shows that the respondent-husband is not maintaining his wife.
(ix) It has been submitted that learned Family Judge ought to have considered the deposition of R.W.-2, namely, Khurshid Alam, who happens to be the father of the appellant/wife. In his entire testimony, he has deposed that he has made sincere efforts and requested the respondent/husband to keep his daughter(appellant) in a dignified manner.
16. The learned counsel, based upon the aforesaid grounds, has submitted that the impugned judgment and decree, therefore, requires interference.
Submission advanced on behalf of the respondent- husband
17. Learned counsel appearing for the respondent- husband has taken the following grounds in defending the impugned judgment: -
(i) There is no error in the impugned judgement as the learned Family Judge has considered the entire issue and on the basis of evidence as led by the respondent- wife (appellant herein) has passed the order impugned, as such, same may not be interfered with.
(ii) It has been contended by the learned counsel for the respondent-husband that since beginning of the marriage, the appellant was not co-operative, she always used to tease him for her higher education and also pressurized him to live separately from his parents.
(iii) It has also been contended that the respondent-wife (appellant herein) was withdrawn from the society of the petitioner-husband (respondent herein) and she left the house of the petitioner-husband without any cogent reason.
(iv) It has been submitted that the petitioner-husband (respondent herein) had made several attempts to bring the appellant/wife but she always refused to come and join the society of the petitioner-husband (respondent herein).
(v) It has also been submitted that the learned Family Court after taking into consideration the material available on record has found that the conduct of the appellant-wife has never been towards salvaging the institution of marriage as it is she who has refused to come and join the society of the respondent-husband (respondent herein) and, therefore on the pretext of the aforesaid categorical finding of the Family Court, the impugned order requires no interference.
18. Learned counsel, based upon the aforesaid grounds, has submitted that the learned Family Judge has rightly recorded its finding that the respondent-husband is bonafidely since beginning always tried his best to lead a happy conjugal life but it is the appellant-wife who at every moment of time avoided him, hence, the impugned judgment cannot be said to suffer from an error.
Analysis:
19. We have heard the learned counsel appearing for the parties and gone through the impugned judgment as well as the Trial Court Records, as also the testimonies of the witnesses and evidences available on record.
20. Sub-section (1) to section 19 of the Family Courts Act provides that an appeal shall lie from every judgment or order not being an interlocutory order of a Family Court to the High Court "both on facts and on law". Therefore, section 19 of the Family Courts Act is parallel to section 96 of the Code of Civil Procedure, the scope of which has been dealt with by the Hon'ble Apex Court in catena of judgments.
21. The law is well settled that the High Court in a First Appeal can examine every question of law and fact which arises in the facts of the case and has powers to affirm, reverse or modify the judgment under question. In "Jagdish Singh v. Madhuri Devi" (2008) 10 SCC 497 the Hon'ble Supreme Court observed that it is lawful for the High Court acting as the First Appellate Court to enter into not only questions of law but questions of fact as well and the appellate Court therefore can reappraise, reappreciate and review the entire evidence and can come to its own conclusion. For ready reference the relevant paragraph of the said judgment is being quoted as under:-
“It is no doubt true that the High Court was exercising power as the first appellate court and hence it was open to the Court to enter into not only questions of law but questions of fact as well. It is settled law that an appeal is a continuation of suit. An appeal thus is a rehearing of the main matter and the appellate court can reappraise, reappreciate and review the entire evidence--oral as well as documentary--and can come to its own conclusion.”
22. Now we are proceeding to the factual aspects of the case.
23. The admitted fact herein is that the suit before learned Family Court has been filed by the respondent husband under Section 281 of the Mohammedan Law for a decree of restitution of conjugal rights wherein altogether five issues have been framed by the learned Family Court, for ready reference, the same are being quoted hereinbelow:-
(i) Is this suit maintainable in its present form?
(ii) Whether the petitioner has valid cause of action for the suit?
(iii) Whether the petitioner has been able to prove that the respondent has withdrawn herself from the society of the petitioner without any reasonable cause?
(iv) Whether the petitioner is entitled for Decree of restitution of conjugal rights against respondent?
(v) Whether the Petitioner is entitled to get the relief as prayed for?
24. The learned Family Judge has taken into consideration the foremost issue, i.e., issue no.(iii)-
“Whether the petitioner has been able to prove that the respondent has withdrawn herself from the society of the petitioner without any reasonable cause?”
25. The learned Family Judge has considered the evidence adduced on behalf of the parties for deciding the issues involved in the said suit.
26. During the trial, on behalf of the petitioner/husband only petitioner-husband (respondent herein) has been examined as P.W.1.
27. P.W.-1 Mohammad Mojamil Haque (Petitioner before the learned Family Court) has stated in his examination-in- chief filed on oath that his marriage with the respondent was solemnized on 25.11.2017 as per Muslim rites and custom at Bokaro. Since beginning of the marriage, the respondent was not co-operative, she always used to tease him for her higher education. She also pressurized him to live separately from his parents. On 14.05.2019, after quarreling with his family members, she called her uncle and maternal uncle and sent her clothes and jewelleries to her parents home and then on 15.05.2019, she called her father and went to her parents home. She has filed a false case against him in Mahila Police Station. That case was compromised on 19.05.2019. After that, they started living in a rented house separately from his parents. He had filed Original Suit No. 324 of 2019 u/S. 281 of Mohammadan Law for restitution of conjugal rights, which was compromised and since 17.07.2019 they were living together in a rented house. On 09.02.2021, due to heavy workload, he returned home in night, but the respondent did not open the door and abused him. He returned to his shop and slept there. On next morning he returned home and found doors of his house locked. On query, he came to know that at about 11:00 pm last night, the respondent has gone to her parents home. Thereafter, he has given an information to Chas Police Station. Several times, he tried to bring her back but of no use. On 16.02.2021, the respondent with her family members has tried to kill him for which he has filed Balidih P.S. Case No. 51 of 2021. The respondent has filed a case under Dowry Prohibition Act against them which is pending. Further, he states that he does not know that his protest petition in Balidih P.S. Case No. 51 of 2021 was rejected. He has given an information against the father of the respondent in SAIL.
28. During the trial, two witnesses have been examined on behalf of the respondent-wife (appellant herein) who herself has been examined as R.W.1 and her father Khurshid Alam as R.W.2.
29. RW-1 Farah Tabassum (respondent) has stated about her marriage with the petitioner and also subjecting her with cruelty and torture due to non-fulfillment of demand of dowry. Panchayati was held on 14.05.2019 and before her uncle, the petitioner has assaulted her and on 15.09.2019 before her father, he tried to strangulate her. She has filed a complaint in Mahila Police Station, which was compromised. It has been stated that the petitioner tried to kill her by pouring kerosene oil. When she has filed Mahila P.S. Case No. 08 of 2021. The Petitioner was taken into custody. The Petitioner pressurized her to sign on blank stamp paper and on plain paper. She has filed Original Maintenance Case No. 202 of 2021, in which the petitioner of this case was ordered to pay Rs.3,000/- per month towards her maintenance, but the Petitioner of this case is not paying her regularly. Further, she states that the case was compromised in the year 2019 in Police Station. In that year, the Petitioner has filed a case for restitution of conjugal rights against her. In her cross-examination, she has admitted that in April 2023, she has received Rs.10,000/- as maintenance.
30. RW-2 Khurshid Alam (Father) has supported the case of the respondent/ appellant herein and in his examination-in-chief filed on oath and has further states that the Petitioner/ respondent herein has demanded dowry from the respondent and he was informed by the respondent within 1-2 days of her marriage. There was a Panchayati in the house of the petitioner, but he could not recall the day and time. For the last time, he went to the house of the Petitioner with the respondent and the petitioner was standing outside of his house.
31. From the aforesaid factual aspect, it is evident that Respondent-husband’s case was that his appellant/wife left matrimonial home without any lawful ground and further even without informing anyone. All the efforts to bring back the wife failed, in view of the above circumstances, the husband instituted a family suit invoking Section 281 of the Mohammedan Law for the restitution of the conjugal rights.
32. The learned Family Court allowed the suit and passed a decree for restitution of conjugal rights in favor of the husband against which present appeal has been filed.
33. It needs to refer herein that Section 281 of the Mulla's Principles of Mohammedan Law deals with the aspect of the restitution of conjugal rights but does not throw any light as to in what circumstances, a decree for restitution of conjugal rights can be granted or declined, for ready reference Section 281 from the Principles of Mohammedan Law by Mulla 20th edition at page 367 which reads as under: -
“Where a wife without lawful cause ceases to cohabit with her husband, the husband may sue the wife for restitution of conjugal rights.”
34. The aforesaid would indicate that there is no such law for seeking the relief of restitution of conjugal rights. The parties will be governed by their personal law. It needs to refer herein that a marriage between Mohammedans is a civil contract and a suit for restitution of conjugal rights is nothing more than an enforcement of the right to consortium under this contract.
35. It is equitable proposition of law that in a suit for restitution of conjugal rights by a husband against his wife, if the Court after a review of the evidence feels that the circumstances reveal that the husband had been guilty of unnecessary harassment caused to his wife or of such conduct as to make it inequitable for the Court to compel his wife to live with him, it will refuse the relief.
36. In the instant from factual aspect, it is evident that Respondent-husband’s case was that his appellant/wife left matrimonial home without any lawful ground and further even without informing anyone.
37. Per contra the appellant/wife who had been examined as RW-1 has stated before the learned Family Court about her marriage with the respondent/husband and she had further stated that she is subjected with cruelty and torture by the respondent husband due to non-fulfillment of demand of dowry. She had further stated that on 14.05.2019 before her uncle, the respondent/husband has assaulted her and on 15.09.2019 before her father, he tried to strangulate her.
38. She had also stated that on 09.02.2021, the petitioner/husband (respondent herein) tried to kill her by pouring kerosene oil and when she has filed Mahila P.S. Case No. 08 of 2021, the respondent/husband was taken into custody. It has further been stated that the Petitioner pressurized her to sign on blank stamp paper and on plain paper.
39. Thus, from the aforesaid fact it is evident the appellant wife has alleged serious instances of cruelty and the same was substantiated by the statement of his Father who had been examined as RW.2.
40. At this juncture in the aforesaid context, it would be apt to refer Section 14 of the Family Courts Act, 1984. Section 14 reads thus;
“14. Application of Indian Evidence Act, 1872-A Family Court may receive as evidence any report, statement, documents, information or matter that may, in its opinion, assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872.”
41. Thus, from the aforesaid it is evident that the consideration of evidence by a Court in the matrimonial matter is not restricted by the rules of relevancy or admissibility provided under the Evidence Act. The Court is left free to receive any evidence or material which assists it to deal effectually with a dispute and the provisions of the Evidence Act would not be applicable in toto. Further the Court deals with disputes concerning the family and should adopt an approach different from that adopted in any ordinary civil proceedings.
42. Thus, it is considered view of this Court that in the cases of the present type, more particularly, matrimonial disputes, the Family Court owes a duty to read something in between the lines so as to try to understand the root cause of the discord between the parties rather than going by the strict rules of evidence.
43. Admittedly as discussed hereinabove the appellant wife has alleged serious act of cruelty against the respondent husband and had particularly stated about the pouring of kerosene oil upon her by the respondent husband.
44. It needs to refer herein that for cruelty, there must be violence of such a character as to endanger personal health or safety or there must be reasonable apprehension of it. A simple chastisement on one or two occasions would not amount to such cruelty. The Mohammedan law on the question of what is legal cruelty between man and wife does not differ materially. A good deal of ill-treatment, even if it is short of cruelty, may amount to legal cruelty.
45. It appears from the materials on record and, more particularly, the case put up by the appellant-wife before this Court that she was being compelled to leave the matrimonial house. It is evident from oral evidences that this is not a case in which it could be said that the appellant wife left her matrimonial home along with her own will and without any compulsion. It is more than clear having regard to the evidence on record that the wife was not comfortable at her matrimonial home on account of various domestic issues. If on account of all such problems, one fine day if she decided to walk out of her matrimonial home, could it be said that the husband straightway is entitled to have a decree for restitution of conjugal rights.
46. It has to be borne in mind that the decision in a suit for the restitution of conjugal rights does not entirely depend upon the right of the husband. The Family Court should also consider whether it would make it inequitable for it to compel the wife to live with her husband. Our ideas of law in that regard have to be altered in such a way as to bring them in conformity with the modern social conditions. Nothing has been shown before this Court in the form of any rule or otherwise which compel the Courts to always 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-husband (respondent herein) if the surrounding circumstances indicate that it would be inequitable to do so.
47. It is settled position of law 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.
48. In Anis Begum v. Muhammad Istafa Wali Khan, 1933 SCC OnLine All 138 : (AIR 1933 All 634) Sulaiman, C.J., observed as follows:
“Their Lordships of the Privy Council in the case of Moonshee Buzloor Ruheem v. Shumsoonnissa Begum, 11 Moo IA 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.”
49. It follows, from the aforesaid that in a suit for restitution of conjugal rights by a Muslim husband against his wife, if the Court after a review of the evidence feels that the circumstances reveal that the husband has been guilty of unnecessary harassment caused to his wife or of such conduct as to make it inequitable for the Court to compel his wife to live with him, it will refuse the relief.
50. Even in the absence of satisfactory proof of the husband's cruelty, the Court will not pass a decree for restitution in favour of the husband if, on the evidence, it feels that the circumstances are such that it will be unjust and inequitable to compel her to live with him.
51. It is considered view of this Court based upon the aforesaid discussion and also from perusal of the impugned judgment that the learned family Court has not taken into consideration the entire factual aspect and evidences available on record in right prespective and further the evidence laid by appellant wife wherein it has been alleged that she has apprehension about danger of her life as one day the respondent husband tried to pour kerosene oil upon her, has not properly been considered therefore, the impugned order/judgment suffers from perversity.
52. It needs to refer herein the interpretation of the word “perverse” as has been interpreted by the Hon'ble Apex Court which means that there is no evidence or erroneous consideration of the evidence.
53. The Hon'ble Apex Court in Arulvelu and Anr. vs. State [Represented by the Public Prosecutor] and Anr., (2009) 10 SCC 206 while elaborately discussing the word perverse has held that it is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law. Relevant paragraphs, i.e., paras-24, 25, 26 and 27 of the said judgment reads as under:
“24. The expression “perverse” has been dealt with in a number of cases. In Gaya Din v. Hanuman Prasad [(2001) 1 SCC 501] this Court observed that the expression “perverse” means that the findings of the subordinate authority are not supported by the evidence brought on record or they are against the law or suffer from the vice of procedural irregularity.
25. In Parry's (Calcutta) Employees' Union v. Parry & Co. Ltd. [AIR 1966 Cal 31] the Court observed that “perverse finding” means a finding which is not only against the weight of evidence but is altogether against the evidence itself. In Triveni Rubber & Plastics v. CCE [1994 Supp (3) SCC 665 : AIR 1994 SC 1341] the Court observed that this is not a case where it can be said that the findings of the authorities are based on no evidence or that they are so perverse that no reasonable person would have arrived at those findings.
26. In M.S. Narayanagouda v. Girijamma [AIR 1977 Kant 58] the Court observed that any order made in conscious violation of pleading and law is a perverse order. In Moffett v. Gough [(1878) 1 LR 1r 331] the Court observed that a “perverse verdict” may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence.
In Godfrey v. Godfrey [106 NW 814] the Court defined “perverse” as turned the wrong way, not right; distorted from the right; turned away or deviating from what is right, proper, correct, etc.
27. The expression “perverse” has been defined by various dictionaries in the following manner:
1. Oxford Advanced Learner's Dictionary of Current English, 6th Edn.
“Perverse.—Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable.”
2. Longman Dictionary of Contemporary English, International Edn.
Perverse.—Deliberately departing from what is normal and reasonable.
3. The New Oxford Dictionary of English, 1998 Edn.
Perverse.—Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law.
4. The New Lexicon Webster's Dictionary of the English Language (Deluxe Encyclopedic Edn.)
Perverse.—Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or petulant.
5. Stroud's Judicial Dictionary of Words & Phrases, 4th Edn.
“Perverse.—A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence.”
54. Thus, the expression “perverse” means that the findings of the subordinate authority are not supported by the evidence brought on record or they are against the law or suffer from the vice of procedural irregularity. A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence.
55. Thus, from the perusal of the impugned order, it is evident that the learned family Judge while allowing the appeal in favour of the plaintiff/petitioner (respondent herein) has not appreciated properly the factual aspect and further without applying the test of reasonableness, has passed the order of restitution of conjugal rights.
56. Thus, on the basis of discussion made hereinabove, this Court is of the considered view that it is a case where it can be said that the findings of the learned Family Court are based on no evidence and the order of restitution of conjugal rights has been passed without due deliberation of the entire factual aspect along with the proper appreciation of evidences laid by both the parties, and therefore there is perversity in the order/judgment of the learned Family Court.
57. The upshot of the whole discussion, therefore, is that this appeal succeeds and the impugned judgment dated 28.08.2023, decree signed on 05.09.2023, passed in Original Suit No.451 of 2021 by learned Principal Judge, Family Court, Bokaro is hereby quashed and set-aside.
58. Accordingly, the instant appeal is allowed.
59. Pending interlocutory application(s), if any, also stands disposed of.
Arun Kumar Rai, J.
I agree.