IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1748 of 2008 SYED SHAHNAWAZ Versus BIBI NASRIN BANO ----------- 2. 21.10.2008 Heard counsel for the petitioner. In the opinion of this Court the impugned order being interim in nature, directing payment of Rs.700/- per month by way of interim maintenance to the wife of opposite party in a proceeding under Clause 281 of the Mahomedan Law cannot be said to be either illegal or without jurisdiction. All that Article 281 says is as follows: “281. Suit for restitution of conjugal rights.- (1) Where a wife without lawful cause ceased to cohabit with her husband, the husband may sue the wife for restitution of conjugal rights. (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 for the benefit of the wife, might, if properly proved, afford good 2 grounds for refusing to him the assistance of the Court” (3) Agreement enabling wife to live separate from the husband.- An agreement entered into before marriage by which it is provided that the wife should be at liberty to live with her parents after marriage is void, and does not afford an answer to a suit for restitution of conjugal rights. Similarly, an agreement, entered into after marriage between a husband and wife who were for some time before the date of the agreement living separate from each other, providing that they should resume cohabitation, but that if the wife should be unable to agree with the husband, she should be free to leave him, is void, and it is not a defence to the husband’s suit for restitution. But an agreement to allow a second wife to live in a separate house and to give her a maintenance allowance has been enforced. (4) Non-payment of prompt dower and restitution of conjugal rights. (5) False charge of adultery by husband against wife.- A false charge of adultery by a husband against his wife is a good ground for refusing a decree for restitution of conjugal rights. But 3 if the charge is true, and it was made at a time when the wife was actually living in adultery, it is no ground for refusing a decree for restitution of conjugal rights. (6) Expulsion of husband from caste.- In a Bombay case, where the parties belonged to the Mussalman Kharwa community of Broach, the High Court refused to pass a decree for restitution of conjugal rights against the wife, on the ground that the husband having been expelled from the caste, the wife was not bound to live with him.” It would, therefore, be clear that at least Clause 281 of the Mahomedan Law does not prohibit a court while adjudicating a suit for restitution of conjugal rights. The strong reliance placed by the counsel for the petitioner on the provisions of Articles 277, 278, 279 and 280 under the heading maintenance of wives also will be of no avail because what has been postitulated therein id certain contingencies in which the maintenance to a wife can be refused. That will not mean that when a proceeding comes under Clause 281, the Court will be denued od its power of granting maintenance 4 even if it is satisfied that the wife is not in a position to maintain herself and contest the proceeding so brought against her by the husband. The second part of the contention of the counsel for the petitioner that the wife has already divorced and therefore, she was not entitled to get maintenance is rather premature because this issue is yet to be decided by the court in the pending proceedings. That being so, this Court would not find any reason to interfere with the impugned order. Accordingly, this application is dismissed. (Mihir Kumar Jha,J.) Surendra/