1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.593 OF 2008 Shaikh Nissar s/o Shaikh Nizam, R/o. Masrat Nagar, Beed, Tq. & Dist-Beed. .... APPELLANT. VERSUS Seema Pravin w/o Shaikh Nissar, R/o. C/o- Shaikh Yusouf Shaikh Mohammad, Azizpura, Khandak, Beed, Tq. & Dist-Beed. .... RESPONDENT. ... Mr.S.D. Ghayal Advocate for the Appellant. Mr.R.R. Imale Advocate for Respondent sole. ... CORAM: K.K. TATED, J. ORDER RESERVED ON : 15TH JUNE, 2009 ORDER PRONOUNCED ON : 24TH JUNE, 2009 ORDER: 1. With the consent of the parties, present Second Appeal is taken on Board for final hearing at the time of admission itself. When notice before admission was issued by this Court on 6th March, 2009, it was made 2 clear that as the matter relates to to application for restitution of conjugal rights, the matter may be heard finally at the stage of admission. Both the counsel for the parties have no objection for taking the matter for final hearing as the Record and Proceedings are already received. 2. Present Second Appeal preferred by the original plaintiff – husband against the Judgment and decree dated 19th March, 2008 passed by District Judge -II, Beed in Regular Civil Appeal No.106 of 2007 arising out of the Judgment and decree dated 21st April, 2007 passed by Joint Civil Judge, Junior Division, Beed in Regular Civil Suit No.243/2006. The Appellant is original plaintiff whereas the Respondent is original defendant. The Appellant filed Regular Civil Suit No. 243 of 2006 for restitution of conjugal rights. It is the case of the Appellant that the Respondent without any reason on 12th June, 2006 left her matrimonial home. It is the case of the Appellant that he married with Respondent on 13th November, 2005 at Beed as per Mohammedan rights and customs. Thereafter both of them stayed at Beed for some time. As the Appellant is 3 Chemical Engineer and passed degree in Engineering in 2001, he joined the services in Reliance Company, Hajira, Dist-Surat, State of Gujrat. Therefore the Appellant took the Respondent with him at Surat. It is the case of the Appellant that after some time the father of the Respondent started giving trouble to the parents of the Appellant on bogus grounds. Father of the Respondent – Shaikh Yusuf started illegal activities. It is the case of the Appellant that father of the Respondent assaulted with weapon to the father of the Appellant. He further stated that on 7th December, 2005 at about 9.30 p.m. the father of Respondent along with his brothers – Yunus, Tayyab, Riyaz and others, attacked the home of the Appellant at Beed. Again on 7th January, 2006 father of Respondent took the parents of Appellant from their house at house of Wahid Deshmukh and illegally detained there. It is the case of the Appellant that father of Respondent called Respondent from Surat to Beed after 13th January, 2006. The father of Respondent has taken back the articles from parents house of the Appellant and left the Appellant’s house along with Respondent. Thereafter due to the intervention of the 4 grand father of Respondent, the Respondent again came to Surat for cohabitation with the Appellant on 28th January, 2006. Thereafter the father of Respondent lodged various criminal cases during the period from 7th March, 2006 to 28th May, 2006 against the family members of the Appellant. It is the case of the Appellant that Respondent was residing with the Appellant till 12th June, 2006. During her stay in her matrimonial house, Respondent filed one criminal case against her father and lodged complaint on 7th March, 2006. But suddenly on 12th June, 2006 filed another criminal case at the instance of Respondent, under Section 498-A of the Indian Penal Code. Crime No.268 of 2008 came to be registered with police station, Beed. Because of the said criminal case, the Appellant, his parents and sisters have taken out anticipatory bail from Sessions Court, Beed. Thereafter the Appellant tried to convince the Respondent to come and join with him at her matrimonial home. Inspite of several requests the Respondent refused to do so. Thereafter the Appellant issued legal notice dated 26th June, 2006 to the Respondent calling upon her to come and join her 5 matrimonial home immediately. Inspite of said notice, Respondent refused to join the Appellant at her matrimonial home and therefore the Appellant filed Regular Civil Suit No.243 of 2006 in the Court of Civil Judge, Junior Division, Beed for following reliefs: “(i) The suit of the plaintiff may kindly be decreed. (ii) Decree for restitution of conjugal rights may kindly be passed against the defendant. (iii) Any other relief to which the plaintiff found entitled thereto may be granted.” 3. On the other hand, learned counsel appearing on behalf of the Respondent submitted that because of unbearable cruelty, the Respondent was constrained to leave the matrimonial home. He submitted that the Appellant and his parents started ill-treating the Respondent and were also not providing food to her. They never allowed the Respondent to meet her parents as such she asked her parents to look into the matter. As such the father of the Respondent applied to 6 concerned police station and brought the Respondent back with the police aid. Because of the cruelty at the hands of the Appellant and his family members, the Respondent was constrained to leave the matrimonial home on 12th June, 2006. 4. Considering the evidence on record, both the Courts below rejected the submission made by the Appellant herein-above. It is the case of the Appellant that both the Courts failed to consider the evidence on record which shows that the Respondent – wife left the matrimonial home without any cause. Learned counsel for the Appellant further submitted that the main cause of dispute is the dispute between Appellant’s mother and Respondent’s father about recovery of sum of Rs.4,00,000/-. Learned counsel for the Appellant submitted that both the Courts failed to consider that, is there any lawful excuse for the wife not to join the company of Appellant- husband and the evidence on record indicate that the dispute was only between the parents of the parties. He further submitted that both the Courts should have granted decree for restitution of conjugal rights when there 7 were no differences in between the Appellant and Respondent and Appellant desired to maintain the Respondent for co-habitation in a bona fide manner. He further submitted that both the Courts below erred in coming to the conclusion that Respondent left matrimonial home because of the cruelty on the part of the Appellant. 5. The trial Court after hearing both the sides, framed the following issue: “Does the plaintiff prove that defendant without lawful cause ceased to cohabit with him since 12th June, 2006? . This issue was answered by the trial Court in the negative considering the evidence of the Respondent as well as four witnesses examined by the Respondent. 6. With the assistance of both the learned counsel, I have gone through the Record and Proceedings in the above mentioned matter. Exhibit 28 is the evidence of Respondent, in which she 8 specifically stated that Appellant and his parents had beaten, assaulted her several times and tortured badly and due to this she was compelled to lodge complaint against the Appellant and his family members with the police station at Beed. After carefully going through the said evidence of the Respondent, it transpires that there is a danger to her life from the Appellant and his family members as such she does not want to cohabit with the Appellant in future, and she apprehends danger to her life, though both the families are related to each other. The Respondent examined Abdul Gafar Peer Mohamed Gous Deshmukh at Exhibit 29. This witness is related to the Appellant. He also stated in his evidence that Appellant and his family members used to torture the Respondent and they used to demand money from the Respondent’s parents. Another witness examined by Respondent is Mohamed Iftekar Mohamed A. Razak at Exhibit 30. He also specifically stated in his evidence that Appellant and his family members used to torture the Respondent from time to time. Another witness Mohamed Vihidoddin Liyakatali Deshmukh at Exhibit 36 and Shaikh Yusuf Shaikh Mohamed at Exhibit 37 deposed in the same way. 9 The evidence was found credible by both the Courts below and I find no reason to differ. 7. It is clear that because of the torture the Respondent did not consider safe to continue her stay with the Appellant and was constrained to leave the matrimonial home. As per Mahomedan Law, under Section 281, suit for restitution of conjugal rights is maintainable where the wife without lawful cause ceases to cohabit with her husband. In similar way Section 281 (2) of Mahomedan Law reads as under: “(2) Cruelty – Cruelty, when it is of such a character as to render it unsafe for the wife to return to her husband’s dominion, is a valid defence to such a suit. “It may be, too, that gross failure by the husband of the performance of the obligation, which the marriage contract imposes on him (s. 265) for the benefit of the wife, might, if properly provide, afford good grounds for refusing to him the assistance of the Court.” 8. It is clear from Section 281(2) of Mahomedan 10 Law that when the wife has reasonable apprehension that her life is unsafe, she should not be compelled to live with her husband. Even the Appellate Court relied on the Judgment in the matter of Shakila Banu vs. Gulam Mustafa, reported in AIR 1971 Bombay, Page No.166. In this case, the Bombay High Court held that in husband’s suit for restitution of conjugal rights wife’s evidence about cruelty does not require corroboration. Para 6 and 8 of this Judgment, read as under: “6. There is no rule of matrimonial law that even in a husband’s suit for restitution of conjugal rights, the wife’s evidence requires corroboration. The Indian Evidence Act does not require corroboration, of a party in Civil Cases. The rule of corroboration is generally a rule of prudence and practice to be applied reasonably having regard to all surrounding circumstances. If the wife is beaten inside the husband’s house, I do not think that it would be possible for the wife to produce witnesses to the beating having regard to the common course of events in such 11 cases. The learned Assistant Judge was therefore wrong in approaching the evidence of the wife as if she was required to be corroborated.” “8. With respect, the true rule is, in my judgment, rightly stated in Tolstory’s Law and Practice of Divorce, sixth edition at page 66 as follows: “The Courts are reluctant to find cruelty on the evidence of the petitioner, unless there is corroborative evidence to support his allegations, but corroboration is not essential, though it is in practice required unless its absence can be satisfactorily accounted for; corroboration is probably more necessary in undefended than in defended cases.” Similarly the Law is stated in paragraph 531 at page 276 of Halsbury’s Laws of England, Third Edition, volume 12 as follows: “Cruelty must be proved beyond reasonable doubt. Corroboration is 12 required in the Divorce Division whenever it can be obtained, unless its absence can be satisfactorily accounted for. Corroboration should be looked for in any charge of cruelty. In cruelty cases, corroboration may be afforded by the evidence of friends, neighbours, or doctors who have seen bruises or other external manifestations.” The Law is perhaps more precisely and properly stated in paragraph 101 at page 167 of Rayden on Divorce, Tenth Edition, as follows: “Corroboration of the petitioner’s evidence is probably not required as an absolute rule of law; but the Court in practice requires it, unless the absence of corroborating witness can be satisfactorily accounted for. Evidence of a witness to the effect that he or she saw the injuries, marks or bruises within a day or two of such injuries having been inflicted is admissible, though any statement 13 made to the witness in the absence of the party implicated is not. Any fact will be corroboration which renders it more probable that the witness’s testimony is true on any material point.” Thus corroboration is not an absolute requirement to enable the Court to believe, in a matrimonial cause, the petitioner’s evidence. None of these authoritie4s has gone to the extent of saying that even where, as in the present case, defence of cruelty is raised against a claim for restitution of conjugal rights corroboration must be insisted upon by the Courts.” 9. Both the Courts below considered the evidence on record and came to the conclusion that the Respondent – wife left the matrimonial home because of torture at the hands of the Appellant and his family members. Exhibit 29 i.e. complaint to the police authority filed by Respondent clearly shows that the way in which the Appellant made Respondent’s life miserable. Considering these facts, I do not find any substance in the submissions made by learned counsel 14 for the Appellant that because of dispute between Appellant’s mother and Respondent’s father, Respondent left the matrimonial home without any reason. It is crystal clear from Exhibit 29 i.e. complaint filed by Respondent with police authority and her evidence, that the Respondent left the matrimonial home because of cruelty committed by the Appellant and her family members time and again. 10. Considering these facts, I do not find any merit in the present Second Appeal. In any case, both the Courts concurrently held that because of torture at the hands of the Appellant and his family members, the Respondent left the matrimonial home and therefore the proceedings initiated by the Appellant for conjugal rights are rejected. In view of these facts, Second Appeal is dismissed summarily. [K.K. TATED] JUDGE. asb/JUN09/sa593.08