A husband's claim for restitution of conjugal rights is dismissed when the wife establishes grounds of domestic violence and the husband has issued a Talaq, thus invalidating the petition.

JUDGMENT :

B. PD. SINGH)

Heard the parties.

2. The present appeal has been filed under Section

19(1) of the Family Court Act, 1984 impugning the judgment and decreed dated 25.06.2016 passed by learned Principal Judge, Family Court, Darbhanga in Matrimonial Case No. 209 of 2012 filed under Section 281 of the Muslim Law, whereby learned Family Court has dismissed the matrimonial suit filed on behalf of the appellant- husband for restitution of conjugal rights with the respondent-wife.

3. The case of the appellant as per petition filed before the Family Court is that the marriage of the appellant with the respondent was solemnized according to the Muslim Shariyat Law in the year, 2003. The marriage was consummated and out of the wedlock, three child were born. It is alleged by the appellant that the respondent fled away with the 3^rd child, who, at that time was aged about three years from her matrimonial house and when the appellant went to his Sasural for Rukshati of his wife, the respondent and other family members refused to the Rukshati. The respondent is a quarrelsome lady and she used to quarrel with the appellant and other in-laws family members on petty issues. The two minor children are living with the appellant and it has become difficult for him to take care of their children in the absence of their mother.Hence, he has filed the present restitution petition.

4. In response to the summons/notices, the respondent appeared and filed her written statement. In her written statement, she has disputed and denied the claim of the appellant. She has stated that after marriage, she went to her Sasural with the appellant where she was tortured, abused and assaulted by the appellant as well as other in- laws for not fulfillment of dowry demand. Even the birth of three children did not change the habit and attitude of the appellant and other in-laws family members. The respondent always tried to lead a conjugal life with the appellant but it was the appellant who always used to assault the respondent without any fault or reason. While assaulting, the appellant became wild and he does not think whether respondent is dead or alive. The appellant himself ousted the respondent from her matrimonial house. The life of the respondent is always in danger at her matrimonial house. In the above circumstance, the respondent does not want for restitution of conjugal rights with the appellant. Hence, the petition filed by the appellant Under Section 281 of Muslim Law is fit to be dismissed.

5. The Principles of Mahomedan Law clearly defines the circumstances under which the restitution of conjugal rights will be made applicable. Section 281 of the Principles of Mohomedan Law reads as under:-

“281. Suit for restitution of conjugal rights (1) Where a wife without lawful cause ceases to cohabit with her husband, the husband may sue the wife for restitution of conjugal rights.

6. In the present case, the respondent-wife herself annexed attested copy of the TALAKNAMA certificate issued by USTAJ MADARSA RAHMANIYA, SUPAUL, BIRAUL, DARBHANGA which clearly suggests that appellant-husband has divorced the respondent-wife. She also does not want to live with the appellant-husband due to his cruel behaviour. Para 12 of the impugned order reads as under:-

“12.Apart from this in support of allegation imposed by the Opposite party/wife against her husband specifically attributed in the pleading of her Written Statement dated-19.7.2013 together with petition dated-7.2.2014, attested copy of TALAKNAMA Certificate, issued by USTAJ MADARSA RAHMANIYA, SUPAUL, BIRAUL, DARBHANGA, has been filed by the Opposite Party/wife to the case. The contents mentioned therein clearly consolidate the allegation and attitude of the applicant which shows that the situation