IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 25TH NOVEMBER 2008 / 4TH AGRAHAYANA 1930 Mat.Appeal.No. 78 of 2003(G) ---------------------------------------- (AGAINST ORDER DT. 27/02/2003 IN OP.292/2001 OF FAMILY COURT,KOZHIKODE) .................... APPELLANT/ RESPONDENT: ----------------------------------------- E.AYISHA, D/O. POKKER, EDAYARAKKAL, PULPRAMBIL HOUSE, P.O.PALLIKKAL, MALAPPURAM DISTRICT. BY ADV. SMT.SANGEETHA LAKSHMANA. RESPONDENT/ PETITIONER: ----------------------------------------- T.ABDUL NAZAR, S/O. MUHAMMED, THACHOLI, THOTTUMPADAM HOUSE, P.O.FEROKE, PETTAH, KOZHIKODE. BY ADV. SRI.HARISH R. MENON, ADV. SRI.K.T.SHYAMKUMAR. THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 25/11/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. P.R.Raman & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - Mat. Appeal No. 78 of 2003 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of November, 2008. JUDGMENT Ramachandran Nair, J. The husband initiated proceedings for restitution of conjugal rights before the Family Court by filing O.P.No.292/2001. Overruling the objections of the wife, the Family Court allowed the petition. The said order is under challenge in this appeal filed by the wife. 2. The parties are Muslims and the marriage was solemnised on 30.1.1992. Three children have been born in the wedlock. After the marriage, they started residing together in the residence of the husband. According to him, there was no problem in their life and he was looking after the wife properly with the meagre income earned by him as a manual labourer. For getting better prospects in life, he went to Gulf on 28.8.1993. The wife was then residing in the family house. He started sending money to the wife for her use. While he was away, the wife used to go to her house during different spells and on many occasions his mother had to bring back her to his residence. The elder son who was studying in the nearby school, was shifted by her to another school near her house without getting M.A.78/03 -2- his consent. He returned from abroad in January 2000 and she was brought back to their house. On 27.4.2001 she left the house without his consent along with the children and thereafter she has not returned. Even though on different occasions he went to bring back her, she refused to come back. This is the crux of the averments made by the respondent/husband in his petition. 3. Learned counsel for the appellant, by referring to the objections filed by the wife before the Family Court, submitted that she was being harassed in her husband's house mainly because of the demand raised by the husband and his family members to provide more money and ornaments for his purposes. She was experiencing mental and physical harassment. He had not been enquiring about the welfare of her as well as the children. The gold ornaments given at the time of marriage was misappropriated by him. He had been demanding money and gold which ultimately resulted in her filing a complaint against them and consequently a criminal case was registered alleging offences under Sections 406 and 498-A I.P.C. Learned counsel submitted that the respondent/husband was convicted in the said criminal case. It is therefore submitted that the finding rendered by the Family Court that there was no justifiable reason for her to go back to her parental house, is not correct. As he has been arrayed as an accused and M.A.78/03 -3- later convicted by the criminal court, it is clear that there is reasonable justification for her not to live with him in his house. 4. The oral evidence consists of P.W.1, the husband and P.W.2, his mother. The wife was examined as R.W.1 and R.W.2 is one Mohammed Shafi who is the secretary of the local mosque. In fact, the wife had a case that because of his intervention mediation talks were held and 21/2 sovereigns of gold was handed over to the husband subsequently to satisfy their demands. 5. Along with I.A.No.3217/2008 the appellant has produced certified copy of the judgment of the Judicial Magistrate of First Class, Parappanangadi in C.C.No.924/2001 as Annexure A1. The accused therein are the husband and his mother. The criminal court found that they are guilty for the offence under Section 498-A read with Section 34 I.P.C. and accordingly convicted them and ordered to undergo simple imprisonment for one year each and to pay a fine of Rs.3,000/- each, in default to undergo simple imprisonment for three months. 6. The trial court did not accept the case of the wife mainly for the reason that she has not proved any reasonable justification for living separately. It is the finding by the trial court that as she was residing peacefully in the matrimonial home and as there are no legal evidence to M.A.78/03 -4- show that she was being harassed, there is no justification for further going back to the parental home. 8. The only independent evidence in this case is that of R.W.2 who is a retired government employee and the secretary of a mosque. He is residing near the residence of the wife. A reading of his deposition reveals that in cross examination he reiterated the stand that he had interfered in the dispute for enabling the parties to join together. During the year 2000 gold ornaments worth 21/2 sovereigns were handed over by the wife to the husband. Another person named Moideen had also mediated between the parties and talks were held in the residence of the brother of the husband. Many members of both families were together there. He was aware about the allegations raised by the wife that she was being harassed by the mother and sisters of the husband. He is also a witness in the criminal case. In cross examination he has clearly stated that when the husband came to the residence of the wife and tried to attack her, he intervened and advised the parties to sink their differences. 9. We are of the view that in the light of Annexure A1 judgment of the criminal court, it cannot be said that there is no reasonable justification for the wife not to live together in the family house of the husband. Of course, the judgment is under appeal before the higher court. But we will be M.A.78/03 -5- justified in taking note of the fact that the criminal case in question was registered by the police on the basis of a complaint filed by the wife. The criminal court convicted the accused on the basis of the oral and documentary evidence available in the case. These clinchingly show that the plea raised by the husband that everything was cordial and there is no justification for the wife to live apart, is not correct. Even though the trial court was not prepared to accept the evidence of R.W.2, we find that the said court was not justified in rejecting his evidence in toto. Admittedly, he is a retired Government employee and the secretary of the mosque. His evidence as described above, shows that there were many problems between the husband and wife and the mediators including him had been involved in the matter. The trial court heavily relied upon the fact that the marriage of the niece of the husband was conducted on 22.4.2001 and immediately after that, she came back to her house and this shows that it was a voluntary action on her part. The husband was all along been maintaining that he had given Rs.75,000/- for the marriage of his niece and this was objected to by the wife. But on an over all assessment of the evidence, we find that the said conclusions arrived at by the trial court are not correct. Going by the evidence of RW.2, there were real differences between the parties which were tried to be sorted out by mediators. It is not a case where there was no M.A.78/03 -6- real justification for the wife to live apart. 10. The fact that the wife had filed a criminal complaint against the husband and the police had charged a case against him, has been clearly stated by RW.1 in her evidence. Being a judgment inter parties, the relevance of the same cannot be simply brushed aside, even though the same has not become final. But in this case where the husband is seeking restitution of conjugal rights, we find that this court will be justified in placing reliance upon the same to find whether there was any justifiable reason for the wife to live apart. In that view of the matter, we find that in the light of Annexure 1 judgment, it cannot be said that there was no justifiable and reasonable cause for the wife to live apart. Hence, we allow the appeal and dismiss the petition filed by the husband as O.P.No.292/2001 for restitution of conjugal rights. No costs. ( P.R.Raman, Judge.) (T.R. Ramachandran Nair, Judge.) kav/