MISC. APPEAL No.120 OF 2008 (Against the order dated 13.07.2005 passed by the Family Court, Bhagalpur in Matrimonial case No. 291 of 2002) MD. MAHMOOD @ NURAIN, SON OF MD. KAISAR ALI, RESIDENT OF VILLAGE- HARNATH, POST OFFICE-SAMASTIPUR, POLICE STATION- SHAHKUND, DISTRICT- BHAGALPUR ……………. APPELLANT -VERSUS- BIBI TABASSUM KHATOON, WIE OF MD. MAHMOOD @ NURAIN DAUGHTER OF MD. USMAN, RESIDENT OF VILLAGE-HARNATH, P.O. SAMASTIPUR, P.S. SHAHKUND, DISTRICT-BHAGALPUR, AT PRESENT BIBI TABASSUM C/O SK. SULEMAN RESIDENT OF VILLAGE- HANSDIHA, P.S. HANSDIAH, DISTRICT-DUMKA, ………… PETITIONER/RESPONDENT. P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON'BLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA Shiva Kirti Singh, Hemant Kumar Srivastava,JJ. Heard learned counsel for the appellant. Today no body appears on behalf of the sole respondent although counsel for the respondent had appeared on earlier dates. 2. Appellant is husband of the sole respondent. It is not in dispute that after the marriage in the year 1996, a female child was born who was aged about four and a half years when Matrimonial Case No. 291 of 2002 was filed by the appellant before the Family Court, Bhagalpur seeking restitution of conjugal rights. The said suit was dismissed for default due to 2 non-appearance of the counsel and non-payment of a cost of Rs 5,00/-, on 13.07.2005. The adjournment application was rejected in summary manner in one paragraph with an observation that as there was no pleading in respect of payment of Mehar, as per Mohammadan Law, a woman has every right to refuse to perform marital obligation till payment of Mehar. On that ground, it was held that the suit in the present form was not maintainable. On all the aforesaid grounds, the suit was dismissed. 3. Neither the Mehar amount has been disclosed nor any ground has been taken that it was a prompt Mehar and was required to be paid before consummation of the marriage. Learned counsel for the appellant has placed reliance upon section 293 of Mullah’s Principles of Mohammadan Law to point out that if the husband files a suit for restitution of conjugal right before sexual intercourse has taken place, non-payment of the Dower (Mehar) may be a complete defence but if the suit is brought after cohabitation has taken place with free consent, a decree for restitution may be passed conditional upon payment of Dower. 4. There is absolutely no discussion in the order under appeal as to whether the dower was prompt or not. There was 3 already a child born out of the marriage as noticed earlier and in such circumstances, the finding that the suit does not appear to be maintainable is found to be erroneous in law and based upon no evidence. Hence, that finding has to be set aside. 5. So far as failure in appearance of the counsel and non-payment of Rs 500/- fine is concerned, from the order- sheet of this appeal, it is clear that with a view to make the marriage successful on the suggestion of this court, the appellant has paid a sum of Rs 10,000/- to the respondent and is also paying maintenance amount at the rate of Rs 1,000/- (one thousand) per month from October, 2009 onwards. In view of such conduct and payment of handsome amount of Rs 10,000/- to the respondent, the direction for payment of cost of Rs 500/- will be deemed to have been satisfied and accordingly, the suit is ordered to be restored to its original file to be tried in accordance with law. 6. Ordinarily the aforesaid order would have been sufficient for final disposal of this appeal as the matter has to be remitted back for trial of the relevant issues. However, in view of supplementary affidavit filed on behalf of the appellant, a copy of which was served upon the counsel for the respondent on 30.8.2010 to which no reply has been filed, it must be noticed 4 that as per the supplementary affidavit, the respondent is alleged to have entered into second marriage on 06.07.2010 with one Mohd. Shamim @ Ekhlaque, S/o Md. Murshid, resident of village-Babura, P.S. Dhoraiya, District-Banka. Surprisingly, the appellant still wants restitution of conjugal rights. It has been submitted on behalf of the appellant that according to Mohammadan law, such second marriage by the wife while the first marriage is still subsisting is against the law and hence void. This aspect of the controversy shall also be considered by the court below in accordance with law. The appeal is allowed to that extent. There shall be no order as to costs. 7. Since the matter has remained pending since 2002, the learned Family Court, Bhagalpur is expected to issue fresh notice upon the respondent and decided the case in accordance with law expeditiously, preferably within six months. Patna, the 11th day of October, 2010 NAFR/AKV- (Shiva Kirti Singh,J.) (Hemant Kumar Srivastava,J.)