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Smt Gulnaz vs Jafarullah on 23 January, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
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)
—-Appellant
Versus
Shri Jafarullah s/o Shri Ammenullah Khan, aged about 39 years,
by caste Musalman, r/o near Chhotti Masjid, Baheer, Tonk
(Rajasthan);
at present Manbagh, Near Masan Ghat, Delhi Road, Jaipur
(Rajasthan)
—-Respondent

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

Judgment
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
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[CMA-2274/2013]

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
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[CMA-2274/2013]

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
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[CMA-2274/2013]

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
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[CMA-2274/2013]

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
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[CMA-2274/2013]

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.

No cost.

(G R MOOLCHANDANI)J. (PRADEEP NANDRAJOG) C.J.

db/ashwani

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