HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
D.B. Civil Miscellaneous Appeal No. 2274 / 2013
Smt. Gulnaz w/o Shri Jafarullah Khan d/o late Sh. Hamid
Ahmed, aged about 28 years r/o Gali Ahmedullah Khan, Panch
Bathi, Tonk, Distt. Tonk (Rajasthan)
Shri Jafarullah s/o Shri Ammenullah Khan, aged about 39 years,
by caste Musalman, r/o near Chhotti Masjid, Baheer, Tonk
at present Manbagh, Near Masan Ghat, Delhi Road, Jaipur
Judgment reserved on : 19th January 2018
Judgment pronounced on : 23rd January 2018
For Appellant(s) : Mr. S.S. Hasan
For Respondent(s) : Mr. Sehban Naqvi
HON’BLE THE CHIEF JUSTICE
HON’BLE MR. JUSTICE G R MOOLCHANDANI
Per Hon’ble Mr. G.R. Moolchandani, J.
Appellant Smt. Gulnaz has assailed findings of court
below passed by Family Court, Tonk on 21.6.2013 in Civil Suit No.
9/2013 (75/2009), whereby Family Court, Tonk has decreed the
petition for restitution of conjugal rights filed by the respondent.
Heard rival submissions, learned counsel for the
petitioner has contended that appellant was maltreated and
beaten by her respondent husband and was ousted from the
house and compelled to seek shelter in her parental house
alongwith two small children, appellant has launched action
against her respondent husband and a case u/s 498A coupled with
sec. 406 of IPC is pending before the Court of Chief Judicial
(2 of 6)
Magistrate, Tonk. Respondent has got an unpleasant
temperament, he has given several beatings and abuses to the
appellant severally, so the appellant cannot be compelled to join
the matrimonial company of her husband, the court below,
ignoring the evidence, has passed the judgment impugned, which
is not sustainable in the eye of law, so it be quashed.
Learned counsel for the respondent Jafarullah has
argued that behavior of the appellant is not amicable, she has
falsely lodged alleged FIR against the respondent and a delay of
six months is there in lodging the alleged FIR, which discloses that
appellant has put in motion unlawful proceedings falsely,
respondent is prepared to keep and maintain her alongwith his
children, there is no infirmity in the findings of the court below, so
the appeal be dismissed.
Heard both the sides and perused the record and
examined the judgment impugned.
Perusal of record shows that appellant/non-petitioner
has refuted the allegations of desertion and has categorically
pleaded that her husband Jafarullah had given beatings to
appellant Gulnaz severally and demanded dowry and also passed
sarcastic taunts by alleging to bring less dowry and demanded
money alongwith motorcycle, tv, fridge, washing machine and
abandoned the appellant to her parental house at tonk and did not
render necessary maintenance money and amenities to the
appellant and her children, it has also pleaded that while on
19.11.2007, the appellant was given thrashing, she lodged a
report with Mahila thana, Gandhinagar, Jaipur, her medical
(3 of 6)
examination was also conducted and on 20.11.2007 on
intervention of family members, a compromise was made, while
the respondent executed a compromise and assured that he will
not repeat atrocity and will also not demand dowry but after one
month to the compromise, respondent again gave severe beatings
to the appellant and left her alongwith her minor children at the
house of her parents at tonk in June 2008, respondent ousted the
appellant after giving beatings and on 19.1.2009 appellant lodged
a case against respondent for offences punishable u/s 498A and
406 of IPC and said case being Case No.159/2005 is sub-judice
before the Court of Chief Judicial Magistrate, Tonk.
Evaluation of evidence reveals that in evidence
respondent Jafarullah has admitted that Gulnaz had filed a case in
January 2009 against the respondent with allegations of cruelty
and demand of dowry.
Cross-examination of this witness is important since he
has admitted that a compromise had taken place on 20.11.2007
with her wife at Mahila thana, Gandhi Nagar, Jaipur and has
admitted that prior to this case, his wife had filed of a case u/s
498A, 406 of IPC against the respondent and a case for
maintenance was also filed by the appellant, he has further stated
that he did not bear, expenses of his kids’ school fee, books and
dress borne at tonk, he has also admitted that he is unable
to bear expenses of his wife and his children and those
were being borne by his parents and brother.
DW1 Gulnaz has corroborated pleadings, written in her
reply, she has also stated that on 19.11.2007 she had lodged a
(4 of 6)
report against her husband at Mahila thana, Gandhi Nagar, Jaipur,
which were later compromised and her husband ousted her from
the house in the month of June 2008, since then she is residing
with her mother at tonk, she has also stated that her case relating
to sec. 125 of CrPC and 498A, 406 of IPC are pending against her
respondent-husband, she has further stated that she apprehends
danger to her life and lives of her kids from Jafarullah.
Corroborating Exhibits-A1 to A16 she has stated that
since June 2008 her husband and in-laws never came to fetch her
nor they are paying any maintenance amount to her. She has
been put to an interrogatory that her “mental status was not well”,
which has been declined by this witness, she has further said that
all her deliveries have taken place, at her parental house.
Perusal of Exhibit-A1 establishes that appellant-
complainant Smt. Gulnaz lodged FIR No.31/2009 on 23.1.2009 at
Police Station Kotwali tonk against her husband Jafarullah and his
family members for the offences punishable u/s 498A and 406 of
IPC and charge-sheet No.36/2009 dt 19.2.2009 has been filed
against her husband Jafarullah son of Ammenullah for the offences
punishable u/s 498A and 406 of IPC. Exhibit-A3 discloses that
Jafarullah, respondent, was arrested against the said FIR on
13.2.2009, Exhibit-A4 copy of the petition seeking maintenance,
also discloses that appellant Gulnaz has filed an application
seeking grant of maintenance against Jafarullah. Exhibits-A5 and
A6 reveals that a compromise was earlier arrived at between the
couple appellant and Jafarullah since he had assured that he will
pay rupees three thousand per month, which would be credited in
(5 of 6)
her bank account and will also pay rupees one thousand five
hundred towards her house-rent and would bear expenditure of
her kids education.
Considering aforesaid, it is evident that respondent
Jafarullah has himself admitted regarding pendency of criminal
case pertaining to cruelty u/s 498A and 406 of IPC and a case in
respect of demand of maintenance, Jafarullah has asserted that
his parents and brother borne expenditure of his wife and kids for
a some of time, whereas he had given an undertaking at the time
of compromise, when a criminal FIR was lodged at Mahila thana,
Gandhi Nagar, Jaipur, that he will pay sustenance amount and
expenses for his kids, which have obviously not been paid.
Scrutiny of the evidence reveals that appellant was
maltreated and beaten at the place of her husband and she has
not been given adequate sustenance amount. Respondent
Jafarullah has himself admitted that cases pertaining to cruelty
and demand of maintenance are sub-judice against him, he has
himself asserted that expenditure of her wife and kids were borne
by his parents and brother and he is not capable to bear the
same, even he has failed to comply with the conditions mutually
agreed vide Exhibit-A6.
Husband is duty bound to render security, amity and
dignity to her she spouse, which respondent Jafarullah has
obviously failed to provide, a women suspecting threat to her body
and dignity cannot be forced to join marital companionship, in
view of the evidence, it is evident that appellant has lawfully
(6 of 6)
proved her reason to stay away from the consortium and
companionship to her respondent husband.
Therefore, view taken by the learned trial court
deserves to be set aside. As such, the judgment and decree
impugned are hereby quashed and set aside.
Accordingly, the instant appeal is allowed.
(G R MOOLCHANDANI)J. (PRADEEP NANDRAJOG) C.J.