IN THE HIGH COURT OF JHARKHAND AT RANCHI

(Civil Appellate Jurisdiction)

First Appeal No. 235 of 2017

Md. Gulam Rabbani, son of Md. Motiur Rahman, resident of Maroof Gunj,

Wasseypur, PO Dhanbad, PS Bank More, District Dhanbad

......Appellant

Versus

Sabana Parween, wife of Md. Gulam Rabbani, daughter of Md. Abid

Hussain, resident of Ghunghimat, PO Kabar, PS Atik, District Gaya (Bihar)

..... Respondent

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CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR

HON'BLE MR. JUSTICE RATNAKER BHENGRA

For the Appellant

: Mr. Parambir Singh Bajaj, Advocate

Mr. Suraj Singh, Advocate

For the Respondent

: Mr. S. K. Murtty, Advocate

Mr. P. K. Mukhopadhyay, Advocate

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O R D E R

22^nd December 2022

Per, Shree Chandrashekhar, J.

The appellant has challenged the judgment dated 22^nd July 2017

by which Original Suit No. 855 of 2015 (in short, “restitution suit”) filed

under section 281 of the Mohammedan Law has been dismissed.

2.

The Principal Judge, Family Court, Dhanbad has held that the

appellant has failed to lay cogent and trustworthy evidence to support the

petition for the restitution of his conjugal rights. The adverse findings

recorded by the Family Court have been challenged by the appellant

primarily on the ground that the ex-parte evidence laid by the petitioner

must be accepted by the Court unless some inherent improbability in such

evidence is shown to the Court.

3.

Briefly stated, the marriage of the appellant was solemnized

with the respondent on 22^nd October 2008 at Gaya following the Muslim

customs and practices. According to the appellant, he lived with the

respondent as husband and wife and out of their wedlock two children were

born, one son and one daughter. He filed TMS No. 29 of 2015 for the

restitution of his conjugal rights in which after a notice was served upon the

2 First Appeal No. 235 of 2017

respondent she appeared in the Court and finally came back to her

matrimonial home on 4^th June 2015. The appellant has further stated that he

therefore withdrew the aforesaid petition on 2^nd July 2015 but the respondent

again left his company on 12^th August 2015 and went to her parents' place

taking both the children with her. He has further stated that he tried hard to

bring his wife back in the matrimonial home but she refused to join his

company in the matrimony.

4.

Mr. Parambir Singh Bajaj, the learned counsel for the appellant

refers to the evidence of the appellant in paragraph nos. 5 and 6 whereunder

the appellant has stated that he wants his wife and children back home and

desires restitution of his conjugal rights.

5.

Section 281 of the Mohammedan Law provides that where a

wife without lawful cause refuses to cohabit with her husband, he may sue

the wife for the restitution of conjugal rights. There are certain conditions

attached with such right of the husband on fulfillment of which he may be

entitled for the restitution of his conjugal rights. But before that, the husband

is required to plead and prove such facts which are necessary for

maintaining a petition under section 281 of the Mohammedan Law.

6.

On a mere glance at section 281, it would appear that one of the

essential facts which a husband is required to establish is that his wife has

“without a lawful cause refused to cohabit with him”. But from the evidence

of the appellant we gather that he has failed to aver that his wife has left his

company without a reasonable cause. On the contrary, the case pleaded by

him in paragraph no. 4 of his evidence is that his wife went to her parents'

place with children without his consent.

7.

In the Original Suit No. 855 of 2015, the Principal Judge,

Family Court, Dhanbad has taken note of his evidence, as under:

“5. The petitioner examined himself as PW-1 and stated in his

affidavit by way