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Bombay High CourtIndian Cases

Shakila Banu vs Gulam Mustafa on 12 March 1970

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Bombay High Court
Shakila Banu vs Gulam Mustafa on 12 March, 1970
Equivalent citations: AIR1971BOM166, (1970)72BOMLR623, ILR1971BOM714, AIR 1971 BOMBAY 166, ILR (1971) BOM 714 72 BOM LR 623, 72 BOM LR 623
1. This Second Appeal filed by one Shakila Banu arises out of a suit filed by her husband, the respondent, Gulam Mustafa for restitution of conjugal rights. They were married according to the rites of their community known as Momin Mohamedans on January 14, 1961. The wife resided with the husband for about 3 years after she attained puberty. The husband, who is a weaver, is living jointly with his father. The husband alleged in the suit that although he never illtreated the wife and a daughter was born to them sometime in May 1966, the wife wanted him to live separately from his father. The husband refused and hence the wife went to reside with her parents in November 1966. She wanted divorce from him and therefore filed an application for maintenance under Section 488 of the Criminal Procedure Code making false allegations against the husband that he was drinking and gambling and threatened to injure the wife. He, therefore, prayed for a decree for restitution of conjugal rights in the suit which was filed on March 31, 1967, in the Court of the 4th Joint Civil Judge, J.D. Dhulia.

2. The wife resisted the suit contending that the husband was addicted to drinking and gambling and he always threatened her with injuries to her person. She alleged that the husband was beating her and illtreating her and sent her to reside in her father’s house saying that she should never return. She denied that she had asked the husband to reside separately and submitted that several meetings of the panchayat of the community were held for re-union of the plaintiff and the defendant but they were of no avail as the husband persisted in illtreating the wife. She further stated that she was not willing to go and reside with her husband as there was danger to her life. She also contended that the suit was filed by the husband only as a counter blast to her application for maintenance.

3. The necessary issues were framed by the trial Court and the parties mainly relied on oral evidence. The husband examined himself and his father as well as two neighbours Abdul Gafur Kalekhan and Haji Abdul Gafur Dinmohamed. The wife also examined herself and two respectable elder members of the community Fajlu Rehaman and Abdul Jabbar. The evidence of the husband and the wife was conflicting. The learned Civil Judge believed the wife’s evidence which was supported by the evidence of her witnesses Fajlu Rehman and, Abdul Jabbar; relied on the admissions made by the father of the husband, that the suit was filed one year after the panchayat of the community had decided that the wife should go to the husband and directed the husband to behave himself, He also relied on the fact that the suit was filed, as admitted by the husband because the thought of filing a claim for restitution of conjugal rights occurred to him when the wife filed an application for maintenance; and dismissed the suit of the plaintiff. In the course of his judgment, the learned Civil Judge had given very good reasons for believing the wife, observing as follows in para 9 of his judgment:

“The defendants. Ex. 22, stated that while she was residing with the plaintiff, he and his parents used to beat her like an animal, they did not use to give her food and finally they left her at her father’s house saying that she should not return to them. In her cross-examination she stated that they used to beat her after closing door and repeated all the allegations of illtreatment. She denied that she ever asked the plaintiff to reside separately from her parents. She does not now want to go to the plaintiff because she feels that there is danger to her life. No reason was suggested in her cross-examination why she should state false-hood against the plain-
tiff with whom she was married. She is a young lady of 22 years in age, appears to be quite innocent in the witness-box, and her evidence showed that it was not possible for her to state a false story of illtreatment.” The learned Judge also considered as reliable the evidence of Fajul Rehman and Abdul Jabbar. who were the elders of the community. Fajul Rehman’s evidence was to the effect that the plaintiff and his parents illtreated the wife and he had advised the father of the plaintiff to see that the defendant was not illtreated on two or three occasions. He had attended the panchayat as an old man of the community. The father of the husband had admitted before him that his son was not behaving properly. The learned Civil Judge observed: “The witness is an old man and there was no reason for him to state a false story about the illtreatment given to the defendant. He stated that he had report of the bad conduct of the plaintiff. The old man, who is a devout Mohamedan, would have not taken part in meeting held to give divorce to the defendant, if he had disbelieved in the allegations against the plaintiff.” With regard to Abdul Jabbar, who was also cited as a witness on behalf of the plaintiff and who also referred to the panchayat meetings of the community held for reconciliation between the husband and the wife, the learned Judge observed:
“But the evidence of Abdul Jabbar clearly shows that at every time there was complaint of illtreatment and the plaintiff was asked to behave properly. If the complaint of illtreatment was false, the Sardar of the community would not have advised the plaintiff to behave properly. He would have straightway put the blame on the defendant and asked her to return to her husband. The fact that the panchayat asked the defendant to go to the plaintiff does not mean that there was no illtreatment ….. The members of the panchayat who were all of stronger sex and under the infulence of their ancient culture, must have decided to ask the defendant to go to her husband in spite of the illtreatment to her. For me the fact that there was a question before the panchayats about the illtreatment is more important than their decisions, because the decisions clearly seem to have been given ignoring the complaint of illtreatment following the ancient culture which favour the stronger sex. Thus the evidence of Abdul Jabbar shows that the defendant was being treated with cruelty.”
4. The learned Judge disbelieved the father of the husband Abdul Hamid because he was not frank enough to admit that he had stated before Abdul Jabbar that his son had illtreated the wife. The learned Judge further relied on the admission made by his witness that the present suit was filed because the defendant filed application for maintenance and observed: “these facts show that the father is one with the son and his evidence being tainted with interestedness cannot be said to help the plaintiffs claim.” In view of the admission of the two witnesses on behalf of the husband in the cross-examination that they were not on visiting terms with the father of the plaintiff or the plaintiff, the learned Judge disbelieved their evidence observing as follows:–

“It is difficult for an outsider to know the conduct of the husband with his wife much less when he is not a frequent visitor. The evidence of the witness which is in the form of a character certificate and which on the face of it appears to be a procured one, and how to suit it the case of the plaintiff, is thus worth rejecting-” The learned Judge relied on the admission of the husband himself in the cross-examination, as stated above, that he thought of filing this claim for restitution when the defendant filed the application for getting maintenance; and came to the conclusion that the suit was not brought to renew the conjugal relations but only to trouble the wife. After discussing the entire evidence the learned Judge concluded: “For the reasons stated above, I have to decide issue No. 1 in the affirmative. There is sufficient evidence to infer a good deal of illtreatment, which may be a little bit short of physical cruelty. It is now clear that the circumstances are such to make it unsafe for the defendant to return to her husband’s house. The relief of restitution of conjugal rights is discretionary, and in the circumstances of the case, it would be proper to refuse the same. The suit should be dismissed with costs.”
5. I have quoted the above passages to emphasise the careful and proper reasoning of the learned Civil Judge in support of his findings and decree dismissing the suit. The husband filed an appeal against the said decree; and, in appeal, the learned Assistant Judge, Dhulia, who heard it set aside the findings, allowed the appeal and decreed the husband’s suit merely reviewing the aforesaid conflicting oral testimony of the husband and wife and their witnesses and holding that the wife had not satisfied “that there was a reasonable apprehension that it would not be safe for her to go and stay with her husband.” In doing so, the learned Judge adopted a wholly wrong approach to the evidence in the case by thinking that in all matrimonial cases the uncorroborated testimony of one of the parties to the marriage was not sufficient to prove cruelty and there must be corroboration relying on a decision in Mirjan Ali v. Maimuna Bibi, AIR 1949 Assam 14. Apart from this wrong approach the learned Assistant Judge acted illegally in reviewing the evidence without following the well settled principles with regard to the power of the Appellate Court to re-appreciate the oral evidence and to arrive at findings contrary to the findings of the trial Judge, who had the advantage of seeing and hearing the witnesses.

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 cases. The learned Assistant Judge was therefore wrong in approaching the evidence of the wife as if she was required to be corroborated.

7. In AIR 1949 Assam 14, the wife had filed a suit for a declaration that she had been divorced from her husband. It was alleged by her that after the marriage she lived with her husband as his wife but the defendant illtreated her physically and mentally, and illfeeling arose between them as a result of which on January 12, 1942, she had accepted talaq under the terms of a kabinnama and hence she prayed for a declaration as stated above. The husband contested the suit denying the illtreatement and talaq. The Munsif in the Court of First Instance, who tried the suit, held that allegations of cruelty were not proved, disbelieved the plaintiff regarding the actual pronouncement of talaq and dismissed the suit with costs. In an appeal by the wife, the Special Subordinate Judge found that there was no independent evidence of illtreatment but that such independent evidence was not to be expected in matrimonial cases and believing the wife and in view of the kabinnama, decreed the plaintiff’s suit. That decree was set aside by Lodge, C.J. and Thadani, J. firstly on the ground that in the absence of a formal pronouncement of Talaq, a kabinnama was not sufficient to dissolve a marriage under the Mohamedan Law. It is true that they also observed that “it is a well established principle that in matrimonial cases the uncorroborated testimony of one of the parties to the marriage is not sufficient to prove cruelty and there must be some corroboration of that evidence, though obviously it was not necessary to examine an eye-

witness to the alleged acts of cruelty.” They were not inclined in that case, to rely on the evidence of the wife who was the plaintiff and who had to prove cruelty, as there was only the uncorroborated testimony of the wife denied by the husband.

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 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 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 authorities 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. Moreover, I find that the learned Assistant Judge ignored without any adequate reason all the evidence on the record, which corroborated the wife and which was the basis of the judgment of the trial Judge. The evidence of Abdul Jabbar which was to the effect that he stood surety for the husband to behave properly because the wife had complained of illtreatment before the panchayat and the husband was given a warning that he should treat her properly, though fully corroborating the wife, was very curiously considered by the learned Assistant Judge as not supporting the wife. It is difficult to understand the reason-ins of the learned Assistant Judge. The learned Assistant Judge discarded the evidence of Fazlu Rehman merely because he was related to the defendant’s father Ignoring all that the trial Judge said about this old man, who was the leader of the community and who tried to reconcile the husband and the wife. He is a man of 74 years and he stated that the father of the defendant told him that his daughter was illtreated and this fully corroborated the allegation of the wife that she was illtreated although the details of the illtreatment which she gave could be known to herself. The relation between this witness and the wife is that the mother of the father of defendant had married this witness’ maternal cousin after the death of the defendant’s grandfather. The witness emphatically stated that the defendant’s father had no concern with him. In these circumstances, the learned Assistant Judge was not justified in proceeding to deal with his evidence as that of an interested witness though his evidence was considered by the trial Judge to be very reliable. Although his evidence had to be considered by him in the context of the other evidence, the learned Assistant Judge proceeded to deal with his evidence as if it was entirely his evidence that was the basis of the case of the wife. The learned Assistant Judge was also wrong in explaining away the conduct of the husband, who admitted that he thought of filing the suit only after the wife had filed maintenance application, although the husband himself had not given any explanation.

10. It is well settled that in a matter of appreciation of evidence and the credibility of witnesses the opinion of the trial Judge should not be lightly disturbed in appeal. See Bombay Cotton Mfg. Co. v. Motilal, 42 Ind App 110 = (AIR 1915 PC 1), Ram Prakash v. Anand, 43 Ind App 73 at p. 83 = (AIR 1916 PC 256) and several other cases decided by the Privy Council as well as by the Supreme Court which have accepted the principle that when a Judge hears and sees witnesses and makes a conclusion based on inferences with regard to what is the weight on balance of their evidence, that judgment is entitled to great respect, and that quite irrespective of whether the Judge makes any observation with regard to credibility or not.

11. In the present case, the passages quoted above from the judgment of the trial Court show that the trial Judge had carefully considered the conflicting oral evidence before him and believed the wife. He had rightly concluded that the evidence was sufficient to infer a good deal of illtreatment which may be a little bit short of physical cruelty. In my judgment, the learned Appellate Judge exceeded his powers as a Court of appeal, failed to follow the aforesaid well-settled principles with regard to review of conflicting oral evidence by the Appellate Court and erred in reversing the conclusions and findings made by the trial Court without any valid reason. Even assuming that corroboration of the wife was necessary, corroborative evidence, in the case, was sufficient. The findings of the Assistant Judge are liable to be set aside. Even in a second appeal, as in my view he has committed a substantial error in ignoring the well settled principles of law relating to review of oral evidence by the Court of Appeal and erroneously disbelieved the wife and her witnesses. The absence of medical evidence regarding the injuries to the wife and of evidence of complaint by the wife to her parents about the injuries did not justify the appellate Court in reversing the findings of the learned trial Judge who believed the wife, describing her as “quite innocent in the witness-box.”

12. Apart from this, it appears that the attention of both the Courts below was not drawn to the judicial principles which ought to be followed in suits for restitution of conjugal rights, as authoritatively laid down by Sir Amberson Marten, C. J. and Madgavkar J. in Bai Jivi v. Narsing Lalbhai, 29 Bom LR 332 = (AIR 1927 Bom 264). The relief of granting restitution of conjugal rights in a husband’s suit means ordering an unwilling wife to go to her husband. This, in my view, was rightly criticised as barbarous by Lord Harschel in Russell v. Russell, (1897) AC 395 referred to in Bai Jivi’s case, 29 Bom LR 332 = (AIR 1927 Bom 264) by Marten, C. J. It is a relic of ancient times when slavery or quasi-slavery was regarded as natural. This is particularly so after the Constitution of India came into force, which guarantees personal liberties and equality of status and opportunity to men and women alike and further confers powers on the State to make special provisions for their protection and safeguard. Whatever may be the ancient law, it is now, difficult to appreciate this compulsion on an Indian wife when she has a reasonable apprehension that her life with her husband is impossible or dangerous to her. The Courts must be slow and cautious in these matters.

13. The learned Civil Judge in the present case, although his attention does not seem to have been drawn to Bai Jivi’s case, 29 Bom LR 332 = (AIR 1927 Bom 264) refused the relief stating that the circumstances in the case were such as to make it unsafe to the wife to return to her husband and the relief of restitution of conjugal rights was discretionary. Marten, C. J. has observed in Bai Jivi’s case, 29 Bom LR 332 = (AIR 1927 Bom 264) at pages 336 and 337 as follows:–

“I think they (lower Courts) have lost sight of the nature of the suit, which, after all, is one rather akin to an action in personam on the Original Side, or in the Equity Courts in England. I have already pointed out that in the arguments in Moonshee Buzloor Ruheem’s case, (1867-11 Moo Ind App 551 (PC) it was described as akin to a specific performance action. In two other cases Lord Herschell has been disposed to apply to such a suit some of the principles with which we are all familiar sitting in a Court of Equity. I refer to the principle that he who seeks equity, must do equity or must come into equity with clean hands. Accordingly, in Mackenzie v. Mackenzie, (1895 AC 384) Lord Herschell remarks:–
“It is not a motion strange to our law that the Court should refuse its aid to one who does not come into it with clean hands, and when the question arises for decision I think it may well be considered whether the Court would be bound to entertain an action, and grant relief at the suit of one whose, misconduct, though falling short of a matrimonial offence, has been the primary cause of the difficulty, and has led to the refusal to adhere.” And then in Russell v. Russell, (1897 AC 395) Lord Herschell states:–
“Indeed, if the broadest definition of cruelty which has been contended for in this case were accepted, it would still be to my mind unsatisfactory that a husband who, though stopping short of cruelty in that sense, had by insult and outrage driven his wife to leave him, should without repentance for the past or any assurance of amendment for the future be able to invoke the assistance of the Court and call for the strong arm of the law to force his wife under pain of imprisonment to resume cohabitation. One would think that the Court might well refuse to afford its assistance to one who acted thus.”
14. With respect, even though a wife cannot be imprisoned now in execution of a decree for restitution of conjugal rights, I entirely agree with the views expressed by Lord Herschell, which appear to have been approved by Marten. C.J. It is true that these were not the principles that were in terms, followed by the trial Judge. But, in substance, he followed the principles as he was satisfied that though cruelty as required by matrimonial law was not established, the circumstances of the case made it unsafe for the wife to return to her husband.

15. The learned Assistant Judge, on the contrary, ignored these principles, perhaps because they were not brought to his notice, and proceeded to decree the suit wholly because he held that the wife failed to prove cruelty as required by matrimonial law and hence her apprehension of danger to her was not reasonable. Such is not the law governing suits for restitution of conjugal rights. In the present case it is clear that the suit was filed for restitution of conjugal right only after the wife had filed an application for maintenance under Section 488. Criminal P. C. Merely because her application was dismissed during the pendency of the suit, it could not be inferred that there was no justification for the apprehensions of the wife that she would not be safe in her matrimonial home with her husband. The learned Assistant Judge was of the view that he was not satisfied that the apprehension of the wife was reasonable; but he has not approached this question, as he ought to have done, from the point of view of an average reasonable wife, to whom no maintenance was offered, as in the present case, for more than a year before the suit and thereafter till now. It is true that she failed to go to the husband’s house after the decision of the Panchayat for the third time; but it appears from the evidence of the panchas of the community that the husband had undertaken at least twice earlier to behave himself. The apprehension of the wife is particularly reasonable because the husband failed to behave himself. The husband, who is a Muslim, has not only a right to marry another wife but also a right to divorce the wife by merely pronouncing ‘Talaq’ as required by Mohamedan Law. As all these relevant matters were not considered by the learned Assistant Judge, his finding that the wife’s apprehension was not reasonable, must be held to be contrary to good sense. It may be noted that Prophet Mohammed said: “Ye are not able, it may be, to act equitably to your wives, even though Ye covet it; do, not however be quite partial, and leave one as it were in suspense; but if Ye be reconciled and fear, then God is forgiving and merciful; but if they separate, God can make both independent out of His abundance, for God is abundant, wise” (Koran, Surah IV 125 Translation by E.H. Palmer.

16. For these reasons the decree passed by the learned Assistant Judge is set aside and the decree passed by the learned Civil Judge is restored. The appeal is allowed. The respondent to pay the costs of the appellant in this Court and in the lower Appellate Court.

17. Appeal allowed.