Appeal against Family Court decree granting divorce to wife on grounds of cruelty and dismissing husband's claim for restitution of conjugal rights. Appellant argued lack of prior FIR. Court held FIR not mandatory and dismissed appeal as restitution claims are not maintainable for Muslims.
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Court No. - 1
Case :- FIRST APPEAL No. - 109 of 2022
Appellant :- Sayyed Mohd. Faizan Respondent :- Hina Parveen Counsel for Appellant :- Mahfooz Alam Counsel for Respondent :- Pal Singh Yadav,Prathama Singh
Hon'ble Ramesh Sinha,J. Hon'ble Subhash Vidyarthi,J.
(1) Heard Shri Mahfooz Alam, learned counsel for the appellant and Shri Pal Singh Yadav, learned counsel for the respondent.
(2) The instant appeal under Section 19 of the Family Court Act, 1984 has been filed against the judgement and decree dated 19.10.2022 passed by the Additional Principal Judge-01, Family Court, Lucknow whereby Regular Suit No.2920 of 2015, which was filed by the respondent-wife for a decree of divorce under Section 2 of the Dissolution of Muslim Marriage Act, 1939, has been decreed and Regular Suit No.3121 of 2015, filed by the appellant for a decree of restitution of conjugal right, has been dismissed.
(3) Regular Suit No.2920 of 2015 was filed by the respondent under Section 2 of the Dissolution of Muslim Marriage Act, 1939 pleading that the parties got married as per Muslim rights and rituals on 08.02.2014; that the behaviour of the appellant towards her was very dry and cruel; that whenever the family members of the appellant used to make comments hurting the feelings of the respondent, the appellant did not pay any attention to the same; that the appellant used to quarrel with the respondent and beat her since five to six days after the marriage; that whenever the family members of the appellants
used to go outside the home they used to lock the respondent inside the home alone; that they did not permit the respondent to meet her family members and to talk to them; that the appellant used to abuse the respondent and insult her; that the respondent was not given food of her liking; that she was not allowed to use the washing machine and that she was compelled to fill water in the water tank of the cooler with heavy buckets. The respondent had further pleaded that she started working in St. Mary's School since April, 2014, but she was not allowed to spend a single paisa from her salary. On 16.11.2014, the respondent gave birth to a son and his son fell ill after his Khatna (circumcision) but the appellant and his family members did not take his care and the respondent had to live in her sister's house along with her child for ten days. The respondent pleaded that for such acts of cruelty committed by the appellant, she had to take shelter in her father's home on 20.07.2015. She again went to live with the appellant on 20.08.2015, but the behaviour of the appellant and his family members did not improve, rather they started treating the respondent with more cruelty and they turned the respondent out of her matrimonial home on 21.12.2015. The respondent stated that she made all the efforts to perform her matrimonial obligations but the appellant treated her with cruelty and for this reason, it was not possible for her to live with the appellant and, therefore, she sought a decree for divorce.
(4) The appellant had filed a written statement opposing the Suit and he stated that the respondent is elder to him in age, she is a lady of liberal thoughts and she communicates with her friends through Whats App and Facebook which, as per the appellant, was unbecoming of a married lady. He further stated that before filing the Suit for Divorce, no First Information Report or complaint was lodged by the respondent and she filed
a case under Sections 498-A, 323, 504, 505 IPC and Section 3/4 Dowry Prohibition Act six months after filing of the Suit for divorce.
(5) In Suit No.3121 of 2015 filed by the appellant for restitution of conjugal rights, he had pleaded that the respondent is elder to him in age and she is a lady of liberal thoughts, she communicates with her friends through Whats App and Facebook which was unbecoming of a married lady. This Suit was defended by the respondent by filing a written statement in which she took the same pleas which was taken in the plaint filed by the respondent in the Suit for Divorce.
(6) The Additional Principal Judge-01, Family Court, Lucknow decreed the Suit for Divorce filed by the respondent and dismissed the Suit for restitution of conjugal rights filed by the appellant.
(7) Challenging the judgment and decree passed by the Family Court in the aforesaid two Suits, the learned counsel for the appellant has submitted that the allegation of cruelty against the appellant was not established as prior to filing the Suit for Divorce, the respondent had not filed any complaint and she had not lodged any First Information Report, from which it is established that the allegation of cruelty is false.
(8) For filing a Suit for Divorce on the ground of cruelty, filing of a criminal complaint or lodging an FIR is not a pre requisite. A criminal complaint or an FIR is lodged in respect of commission of some offence, when the complainant or the informant seeks punishment of the accused person. It is not necessary for a wife to claim a decree of divorce that she should first initiate proceedings for prosecution of her husband and for getting him punished by filing a criminal case.
(9) The Suit for Divorce has to be decided on the basis of the pleadings made and evidence produced before the Family Court. The respondent had categorically pleaded commission of cruelty by the appellant and his family members, as has been noted above. She proved her pleadings by examining herself as a witness in the Suit. In her cross-examination, the respondent stated that she and the appellant, both used to teach at St. Mary's Public Inter College and acquaintance developed between them there. Although she did not want to marry the appellant, she agreed for it after being pressurized by the appellant. She stated that the relations between her and her husband were good at the time of birth of his son.
(10) The Family Court held that the respondent had proved the allegation of cruelty by filing her affidavit as her examinationin-chief and in her cross-examination, no question was put to her in this regard. The Family Court further noted that after filing Suit for Divorce, the respondent had filed a case against the appellant under Sections 498-A, 323, 504, 505 IPC and Section 3/4 Dowry Prohibition Act and she has filed a case under Muslim (Protection of Women from Domestic Violence) Act.
(11) The Family Court further observed that the averments made in the Civil Cases are not required to be proved beyond reasonable doubt and a Suit for Divorce is decided on the basis of preponderance of probabilities. Whether a particular action amounts to cruelty or not, would depend upon the educational, social and financial status of the parties. The wife has the right to live with dignity in the house of her husband. Locking the wife inside a room, not permitting her to meet her relatives, not providing her the food of her liking and cursing her for not bringing dowry amounts to cruelty against the wife.
(12) Having examined the facts and circumstances of the case in light of the pleadings and evidence of the parties, we are of the considered view that the aforesaid findings of the Family Court are based on a proper appreciation of the relevant evidence and it does not suffer from any error or illegality warranting interference in appeal.
(13) So far as the appellant's claim for a decree for restitution of conjugal rights is concerned, there is no provision in law for passing a decree for restitution of conjugal rights where the parties to the marriage are Muslims. Moreover, as the Family Court has recorded that the appellant had treated the respondent with cruelty, her refusal to live with the appellant is not without any sufficient cause and on the contrary, it is fully justified. Therefore, the Family Court did not commit any error or illegality in dismissing the Suit for Conjugal Rights filed by the appellant.
(14) In view of the aforesaid discussions, we do not find any force in the appeal filed by the appellant-husband and the same is liable to be dismissed.
(15) Accordingly, the instant appeal is dismissed. However, there will be no order as to costs.
(Subhash Vidyarthi, J.) (Ramesh Sinha, J.)
Order Date :- 14.2.2023 Arnima
Digitally signed by :- ARNIMA SINGH High Court of Judicature at Allahabad, Lucknow Bench
3 issues framed by the court
Whether filing of a criminal complaint or FIR is a pre-requisite for claiming divorce on grounds of cruelty.
Whether a decree for restitution of conjugal rights can be passed in a marriage between Muslims.
Whether the Family Court erred in finding that the wife's refusal to cohabit was justified due to cruelty.
2 provisions across 2 enactments
Sayyed Mohd. Faizan
Hina Parveen
Ramesh Sinha
Subhash Vidyarthi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
