2011 Supreme(Bom) 1091

2011 (6) ALLMR 780
In the High Court of Bombay at Nagpur
B.P. DHARMADHIKARI & A.P. BHANGALE
Sheikh Abdullah son of Sheikh Hafizullah
Versus
Dr Husnaara Parveen wife of Sheik Abdulla
First Appeal No. 275 of 2001
Decided On : 15-09-2011

Headnote:Muslim Law - Restitution of conjugal rights-Sought by appellant-husband-Factum of Nikah, consummation of marriage in accordance with Islamic Law, cohabitation and consequent desertion denied by respondent-Burden of proof lies upon appellant to prove these facts.- Considering the stand taken by the respondent in her notice dated 9.5.1998 which was issued prior to the institution of the petition, according to the respondent, she was heart patient and the petitioner had taken her on the pretext of taking her to a doctor known to him, but took her to hutment area of Sonegaon on 1.11.1997 to one house under threat to kill her brothers if she refused to sign, obtained her signatures on papers by exerting pressure by use of force and fraud. According to respondent, she had lodged complaint to the police, but police did not take cognizance on the ground that it was a civil matter. The respondent had denied her marital status as alleged by the petitioner and refused to accept the notice of the petition in the trial Court on the ground that petitioner is playing fraud by wrongly describing her name as his wife. She had raised objection before the trial Court on 10.7.1998 contending that she is unmarried practising doctor informing the trial Court that she had lodged Criminal Case No. 87 of 1998 under Sections 506, 294 and 496 read with Section 34 of the Indian Penal Code. Under these circumstances, therefore, the burden of proof was upon the petitioner to prove Nikah and consummation of marriage in accordance with Islamic Law. The petitioner had failed to discharge the heavy onus of proof to establish the solemnization of a valid Muslim marriage, a civil contract, in the eye of law with free consent of the respondent as also the consequent cohabitation for alleged period of four months, as alleged. The evidence indicate that the family members of the petitioner and the respondent were absent at the time of alleged Nikah. The alleged presence of the respondent at the specific place of marriage at Panipeth, Mominpura on 1.11.1997 as contended itself remains doubtful for want of evidence beyond reasonable doubt. According to the appellant, marriage was solemnized at the house of Dr. Arif Khan. But Dr. Arif is not examined to prove it for reason best known to the appellant. According to the case of the respondent, the appellant was trying to blackmail the respondent by demanding sum of Rs. 60,000/- to return document on which he had obtained signature of the respondent under threat and by force. Court feels, on the evidence before the trial Court, if the trial Court believed that petitioner has not come to the Court with clean hands or that his own conduct as a party has been unworthy or his petition was filed with ulterior motives and not in good faith, or that it would be unjust to compel the wife to live with him in the facts and circumstances, the trial Court can refuse to pass a decree for restitution of conjugal right. Judge of Family Court has appreciated the oral evidence on record properly and arrived at a correct conclusion in the facts and circumstances stated by Court that the appellant had failed to establish the factum of marriage in accordance with Islamic Law, as claimed. Furthermore, he failed to establish desertion by the respondent. In these circumstances, Court does not find any ground made out for to interfere with the impugned judgment and order.

       FAMILY COURTS ACT, 1984 - Section 7 - Petition for conjugal rights by husband. Appellant-husband, filing petition for restitution of conjugal rights, must establish that other spouse has without reasonable excuse withdrawn from society of appellant.

       Muslims are governed by their personal laws under which Nikah i.e. marriage is a civil contract and may be permanent or temporary. All the ingredients of a valid contract must, therefore, be satisfied. A woman who has attained the age of puberty, who is of sound mind, is competent to enter into contract of marriage. A validity of the contract would also depend upon free consent of both the contracting parties.

       A vakil is required to be voluntarily appointed to propose and for to accept the marriage. A proposal must be made in the presence and hearing of two sane males or one sane male and two sane female adults, all Muslims and unqualified and absolute acceptance of the said proposals at the same time can constitute a valid Nikah under the Muslim Personal Law coupled with payment of prompt dower. In the present case, free consent of the respondent was sine qua non for the valid Nikah.

       If her consent was obtained by coercion and fraud it cannot lead to a valid marriage. Considering the evidence on record, it does appear that appellant and respondent were related to each other as cousins. They resided in the adjoining houses at the same address as their houses were divided by common partition. Claim of the appellant was not corroborated by any satisfactory proof is to valid Nikah as also as to cohabitation and consummation of marriage, as claimed.