The first question before us is as to whether there existed valid
marriage in accordance with Mohamedan Law between appellant and
respondent. Appellant deposed before the Family Court that respondent is his
cousin sister and they were residing in the houses adjacent to each other with
common partition. According to appellant, respondent had sent letters
(exhibits 40 and 40A) submitted by him in the Family Court which appear to
have been denied by respondent in her evidence. Appellant claimed that he had
approached with a notice of intended marriage in the office of Registrar of
Marriages situated at Civil Lines, Nagpur along with leaving certificates and the
forms were filled in in the handwriting of the respondent as per exhibit 41 and
the Registrar had fixed the date of marriage as 17.2.1997. Although according
to appellant, names of appellant and respondent were displayed on the notice
board, they could not attend the date fixed for marriage. Looking into this
evidence, it becomes an admitted fact that there was no marriage solemnized in
terms of the provisions contained in the Special Marriage Act. It is further
claimed by the appellant that he and respondent had decided to marry in
accordance with their personal law and that they had gone to Moulana Shakil
who had performed their Nikah at Panipeth, Mominpura, Nagpur and at that
time, Dr Arif was Vakil and that there were two witnesses viz. Mohammad
Hanif and Mohammad Hafiz when Meher was fixed at Rs. 11,000/. Appellant
also claims that he and respondent got their marriage registered on 1.11.1997
and thereafter both of them resided together for about four months. However,
except for bank account in which respondent was nominated, there is no any
acceptable and admissible documentary evidence produced on behalf of
appellant so as to believe that he had in fact married with the respondent in
accordance with Islamic law. According to appellant, after cohabitation for a
period of four months, respondent had requested him that she wanted to meet
her parents. He allowed her to meet her parents, but thereafter for 34 days
respondent did not meet him. Therefore, he went to her parents’ place where
respondent’s father did not allow him to enter the house. This version also
appears doubtful because had it been so as a natural conduct, the appellant
would have taken immediate steps to approach police or court of law.
10. Witness Mohammad Sakil examined by the appellant deposed
about certain conditions which are required to be complied with for marriage
which are stated thus : (1) Bride shall attain the age of puberty and (2) At the
time of marriage, besides bride and bridegroom, three other persons are
required to be present i.e. two witnesses and one Vakil. Although he stated
about the procedure as to how marriage contract is entered into, he did not
specify as to what exactly had happened when alleged Nikah was performed so
as to comply with the procedure stated by him for performance of valid
marriage in accordance with Muslim Law. In the course of his cross
examination, witness Mohammad Sakil admitted that there was no mention in
the Marriage Register brought by him as to the specific place of marriage. It was
not so mentioned even in the marriage certificate as according to him,
certificates were given to both bride and bridegroom. He has also admitted
that he had not seen face of bride till Nikah. According to him, it is the right of
bride to appoint a Vakil, but he had no knowledge as to who appointed Vakil for
the bride. He never enquired as to whether parents of the petitioner and other
family members were present for Nikah or not. He was unable to recognize
signatures of the persons who were present for the Nikah. According to him, he
had performed Nikah as per instructions given by the petitioner and Vakil and
after performing Nikah, he went back. Although according to him, he possessed
Sanad Jamiya Arbiya (authority for performing marriage), he was unable to
produce any such document which authorises him to perform marriage
according to Muslim Law. He also admitted that in the marriage certificate, his
address was not mentioned. He had charged fees of Rs. 101/ and he went
back to his residence after taking fees. Admittedly, he had not seen any type of
Fatwah in which Nikah can be performed without presence of guardian of
bride. His evidence, therefore, appears unsafe to rely upon.
11. Another witness Mohammad Hanif was examined on behalf of the
petitioner in the Family Court who claims that he was present at the time of
Nikah performed by Moulana Sakil. According to him, exhibit 51 bears his
signature as witness and it was taken on the date of Nikah. According to him,
Vakil Dr Arif (not examined) had asked respondent as to whether she was ready
for Nikah and then accepted Nikah. Thereafter her signature was taken and
Moulana Sakil asked petitioner as to whether he was ready for Nikah and
petitioner accepted Nikah. This witness was crossexamined in detail. He
admitted that relatives of respondent were not present at the time of Nikah.
Even parents and brother of petitioner were not present at the time of Nikah.
According to him, Nikah was performed at the residence of Dr Arif at
Mominpura, Nagpur, but it was not so mentioned in the Nikah Nama as to in
whose house Nikah was performed. He also admitted that although he was
present for half an hour, there was no refreshment. In the same breath, he
changed his version and voluntarily deposed that there was refreshment. He
also admitted that appellant and respondent were residing by the side of each
other’s house and it was within his knowledge that respondent had lodged
complaint against the petitioner, his two brothers and mother. Thus, looking
into evidence led on behalf of the petitioner, one cannot positively conclude
that there was valid marriage in accordance with Muslim Law between
appellant and respondent by her free consent. Merely making her nominee in
the bank account by itself cannot be an evidence of a valid marriage between
appellant and respondent. Learned Family Court also observed and rightly so,
that there was no evidence of payment of prompt dower. Although
requirements of valid Nikah were stated in the evidence, none of the witnesses
appears to have adduced specific and acceptable evidence to establish that
procedure was complied with, as stated, to enable appellant and respondent to
enter into a valid marriage in accordance with Mohamedan Law. 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. 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. 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, but there appears no such evidence led in the
present case.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
First Appeal No. 275 of 2001
Sheikh Abdullah son of Sheikh Hafizullah,
Vs
Dr Husnaara Parveen wife of Sheik Abdulla,
Coram : B. P. Dharmadhikari & A. P. Bhangale, JJ
Dated : 14/15th September 2011
1. Present appeal is preferred by appellanthusband against the
judgment and order dated 14
th
June 2001 passed by the Judge, Family Court,
Nagpur dismissing his petition for restitution of conjugal rights. Appeal has not
come up for final hearing out of chronology. However, in view of Civil
Application No. 2386 of 2001 filed by appellanthusband for grant of stay as,
according to appellant, respondentwife is getting married on 16
th
September
2011, instead of deciding civil application alone, appeal itself has been taken up
for final hearing by consent of parties.
2. Heard learned counsel for the parties at length. Perused the
impugned judgment and order and other material on record.
3. The case of the appellant is that respondent is cousin of appellant
and they were residing at Bhutiya Darwaza, near Masjid, Nagpur. They fell in
love with each other and their love affair blossomed into their agreement to
enter the marital tie. It is averred in the petition that somewhere in the month
of MayJune 1997 they visited the office of District Marriage Officer and an
application in prescribed proforma along with relevant documents was filed by
respondent for her intended marriage with appellant. However, marriage could
not be performed since the parties could not attend the said Office well in time.
After this attempt failed, another application in prescribed proforma was
prepared, but it could not be submitted. Lastly, on 1.11.1997 appellant and
respondent got married as per the provisions of the Muslim Personal Law.
Meher amount was settled at Rs. 11,000/ and the marriage was registered on
7.11.1997. The case of the appellant is that marriage was consummated and
that appellant had opened savings bank account in his own name with Shikshak
Sahakari Bank, Mahal Branch, Nagpur showing respondent as his nominee.
According to appellant, he and respondent led marital life for about four
months. However, thereafter respondent’s close relations started objecting to
the marriage and they diverted her mind. In or about May 1998, respondent
issued notice though her lawyer to the petitioner alleging that marriage was
performed fraudulently and that appellant misused her signatures on certain
forms. Notice was replied by appellant. Respondent did not stop there. She
lodged police report making false allegations. Even though police did not
register any offence, they exerted pressure on appellant to dissolve the
marriage. Appellant sought for appropriate action against the concerned police
officers by making representations to the Commissioner of Police and other
higherups. He then filed petition (Case No. A243 of 1998) before the Family
Court for restitution of conjugal rights.
4. On being served, respondent Husnaara filed her Written Statement
and denied marriage. She averred that the alleged marriage was nothing but a
fraud which was played by the petitioner (appellant) after misusing her
signatures on certain blank forms which were obtained by the appellant by
force and fraud. She denied all adverse allegations and added that appellant is
a greedy person and wanted a wife who is earning hand. She prayed for
dismissal of the petition.
5. Before the Family Court, appellant examined himself on oath and
Mohammad Sakil who allegedly performed Nikah as also Mohamad Hanif, a
common friend. On the other hand, respondent examined herself; her mother
Smt Sadeka and her cousin brother Abdul Rashid.
6. Learned Judge of the Family Court held that no valid marriage was
proved. A finding is rendered that appellant petitioner failed to prove that
respondent withdrew his society without any reasonable cause and that
appellant was not entitled to decree for restitution of conjugal rights. Petition
thus came to be dismissed by the impugned judgment and order .
7. Learned counsel appearing for the appellant strenuously urged
that the finding of learned Judge, Family Court is perse illegal and that learned
Judge has erred in law by holding that the marriage was not legal and valid and
out of own volition of respondent wife. He read before us oral evidence
adduced on record and love messages sent by respondent to appellant in form of
poemsgazhals in her own handwriting. It is contended that appellant and
respondent had married in accordance with Muslim religious rites and thus
there was permanent civil contract between the spouse. Learned counsel for the
appellant after taking us through entire evidence urged that the appeal ought to
be allowed as there was sufficient evidence to prove that there was valid
marriage between appellant and respondent and that respondent had
withdrawn herself from the company of the appellant on the ground that she
was educated and appellate is illiterate. According to him, appellant and
respondent had cohabited as husband and wife for about four months; Savings
Bank account of appellant showed the name of respondent as and nominee.
Further, according to learned counsel, fact of performance of Nikah; settlement
of Meher amount is proved through evidence and, therefore, it ought to have
been concluded that there was valid marriage between the parties. He,
therefore, prayed that appeal be allowed.
8. On the other hand, learned counsel for respondent emphatically
contended that appellant had failed to discharge onus upon him and there was
no legal evidence to prove marriage contract according to Muslim Law and
religious rites in the present case. He also submitted that respondent had
denied any marriage with the appellant by her specific contention that she never
signed any document to acknowledge marriage with the appellant. It is also
submitted that there was no cohabitation at all between the appellant and the
respondent and there was no possibility of marriage taking place in the absence
of family members of respondent. It is also contended that the appellant has
taken some signatures on blank papers by exerting pressure on the respondent
in respect of which legal notice dated 9.5.1998 was served that her signatures
were obtained by fraud or per force. It is further submitted that appellant tried
to blackmail the respondent by demanding a sum of Rs. 60,000/ from the
respondent. Learned counsel reiterated that since there was no sufficient
evidence to hold that the marriage between the parties was pursuant to a valid
contract, valid, learned Judge, Family Court has rightly answered the points for
determination in favour of respondent. He prayed for dismissal of the appeal.
9. The points for determination arose as under :
Points for determination Findings
(1) Whether the appellant had proved valid
marriage with the respondent in accordance
with Muslim Law and religious rites ? ...... Not proved.
(2) Whether the appellant had proved
that the respondent withdrew from his
society without any just and reasonable
cause ? ..... No.
(3) Whether appellant is entitled for
a relief of restitution of conjugal right ? ..... No
(4) What order ? ..... The appeal is dismissed.
R E A S O N S
10. The first question before us is as to whether there existed valid
marriage in accordance with Mohamedan Law between appellant and
respondent. Appellant deposed before the Family Court that respondent is his
cousin sister and they were residing in the houses adjacent to each other with
common partition. According to appellant, respondent had sent letters
(exhibits 40 and 40A) submitted by him in the Family Court which appear to
have been denied by respondent in her evidence. Appellant claimed that he had
approached with a notice of intended marriage in the office of Registrar of
Marriages situated at Civil Lines, Nagpur along with leaving certificates and the
forms were filled in in the handwriting of the respondent as per exhibit 41 and
the Registrar had fixed the date of marriage as 17.2.1997. Although according
to appellant, names of appellant and respondent were displayed on the notice
board, they could not attend the date fixed for marriage. Looking into this
evidence, it becomes an admitted fact that there was no marriage solemnized in
terms of the provisions contained in the Special Marriage Act. It is further
claimed by the appellant that he and respondent had decided to marry in
accordance with their personal law and that they had gone to Moulana Shakil
who had performed their Nikah at Panipeth, Mominpura, Nagpur and at that
time, Dr Arif was Vakil and that there were two witnesses viz. Mohammad
Hanif and Mohammad Hafiz when Meher was fixed at Rs. 11,000/. Appellant
also claims that he and respondent got their marriage registered on 1.11.1997
and thereafter both of them resided together for about four months. However,
except for bank account in which respondent was nominated, there is no any
acceptable and admissible documentary evidence produced on behalf of
appellant so as to believe that he had in fact married with the respondent in
accordance with Islamic law. According to appellant, after cohabitation for a
period of four months, respondent had requested him that she wanted to meet
her parents. He allowed her to meet her parents, but thereafter for 34 days
respondent did not meet him. Therefore, he went to her parents’ place where
respondent’s father did not allow him to enter the house. This version also
appears doubtful because had it been so as a natural conduct, the appellant
would have taken immediate steps to approach police or court of law.
10. Witness Mohammad Sakil examined by the appellant deposed
about certain conditions which are required to be complied with for marriage
which are stated thus : (1) Bride shall attain the age of puberty and (2) At the
time of marriage, besides bride and bridegroom, three other persons are
required to be present i.e. two witnesses and one Vakil. Although he stated
about the procedure as to how marriage contract is entered into, he did not
specify as to what exactly had happened when alleged Nikah was performed so
as to comply with the procedure stated by him for performance of valid
marriage in accordance with Muslim Law. In the course of his cross
examination, witness Mohammad Sakil admitted that there was no mention in
the Marriage Register brought by him as to the specific place of marriage. It was
not so mentioned even in the marriage certificate as according to him,
certificates were given to both bride and bridegroom. He has also admitted
that he had not seen face of bride till Nikah. According to him, it is the right of
bride to appoint a Vakil, but he had no knowledge as to who appointed Vakil for
the bride. He never enquired as to whether parents of the petitioner and other
family members were present for Nikah or not. He was unable to recognize
signatures of the persons who were present for the Nikah. According to him, he
had performed Nikah as per instructions given by the petitioner and Vakil and
after performing Nikah, he went back. Although according to him, he possessed
Sanad Jamiya Arbiya (authority for performing marriage), he was unable to
produce any such document which authorises him to perform marriage
according to Muslim Law. He also admitted that in the marriage certificate, his
address was not mentioned. He had charged fees of Rs. 101/ and he went
back to his residence after taking fees. Admittedly, he had not seen any type of
Fatwah in which Nikah can be performed without presence of guardian of
bride. His evidence, therefore, appears unsafe to rely upon.
11. Another witness Mohammad Hanif was examined on behalf of the
petitioner in the Family Court who claims that he was present at the time of
Nikah performed by Moulana Sakil. According to him, exhibit 51 bears his
signature as witness and it was taken on the date of Nikah. According to him,
Vakil Dr Arif (not examined) had asked respondent as to whether she was ready
for Nikah and then accepted Nikah. Thereafter her signature was taken and
Moulana Sakil asked petitioner as to whether he was ready for Nikah and
petitioner accepted Nikah. This witness was crossexamined in detail. He
admitted that relatives of respondent were not present at the time of Nikah.
Even parents and brother of petitioner were not present at the time of Nikah.
According to him, Nikah was performed at the residence of Dr Arif at
Mominpura, Nagpur, but it was not so mentioned in the Nikah Nama as to in
whose house Nikah was performed. He also admitted that although he was
present for half an hour, there was no refreshment. In the same breath, he
changed his version and voluntarily deposed that there was refreshment. He
also admitted that appellant and respondent were residing by the side of each
other’s house and it was within his knowledge that respondent had lodged
complaint against the petitioner, his two brothers and mother. Thus, looking
into evidence led on behalf of the petitioner, one cannot positively conclude
that there was valid marriage in accordance with Muslim Law between
appellant and respondent by her free consent. Merely making her nominee in
the bank account by itself cannot be an evidence of a valid marriage between
appellant and respondent. Learned Family Court also observed and rightly so,
that there was no evidence of payment of prompt dower. Although
requirements of valid Nikah were stated in the evidence, none of the witnesses
appears to have adduced specific and acceptable evidence to establish that
procedure was complied with, as stated, to enable appellant and respondent to
enter into a valid marriage in accordance with Mohamedan Law. 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. 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. 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, but there appears no such evidence led in the
present case. Respondent who deposed in support of her written statement
stated that the appellant was pressurising her to sign on paper and after he took
her signature, he had told her that he took her signature on Nikah paper and
when she asked him to return the papers, there was threat of life of her family
members. One unknown person had told her that if she would complain, then
there is possibility that petitioner who is her cousin brother, will suffer jail.
According to her, her family members were intending to settle the issue in the
house only and they had asked the petitioner for the alleged Nikah papers for
which the petitioner and his family members demanded a sum of Rs. 60,000/
from her. In the result, she had issued legal notice on 9.5.1998 to the petitioner
that socalled marriage dated 1.11.1997 was by fraud and per force and she had
reported matter to the police. She had filed criminal complaint against
appellant and others in which appellant and his family members were released
on bail. Thus, according to respondent, socalled marriage was never held at
Panipeth, Mominpura, Nagpur and she never cohabited with the appellant. She
even denied her handwriting and signatures on documents (exhibits 42 and
43). According to her, there was compromise talks between her family members
and family members of appellant, but it was on the basis that there was no legal
marriage between her and appellant. She explained her nomination by the
appellant on the ground that she had filled in the application form as cousin
sister of the appellant and because appellant had shown trust in her. She also
denied having appointed any vakil for the purpose of marriage and entering into
“Nikah” with the appellant. Her mother was also examined as witness who
deposed that she had no knowledge about marriage between appellant and
respondent on 1.11.1997. According to her, respondent was pressurised by the
petitioner to sign on some blank paper by threatening her that he would kill her
brother. Respondent has also examined one common relative Abdul Rashil who
knew the appellant and respondent as they were his cousins. According to him,
there was no marriage between appellant and respondent. He deposed about
his knowledge that petitioner used to pressurise respondent for marriage and,
therefore, he had scolded the appellant (petitioner) and told him that it was not
proper as respondent was his sister. Then petitioner had assured him that he is
treating her as sister, but he wanted to take revenge against father of
respondent. When documents prepared by the appellant were demanded back,
appellant had demanded Rs. 60,000/ from the respondent’s family.
12. 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
as to valid Nikah as also as to cohabitation and consummation of marriage, as
claimed. To us, presence of respondent at the time of alleged Nikah is doubtful
as she did not make any mention of it nor there was any suggestion to her that
she was present at the time of alleged Nikah. In order to succeed in a petition
for restitution of conjugal rights, it was obligatory upon the appellant to prove
the existence of a valid marriage between him and respondent. We have already
observed that marriage in accordance with Islamic Law is a civil contract and in
absence of free consent of the respondent, it was not possible for the petitioner
appellant to enter into such marriage contract (Nikah). The first question,
therefore, must be answered as nor proved. It is answered accordingly.
13. Although it is not necessary to go into next question as to whether
the respondent had withdrawn from the society of the petitioner without
reasonable cause, it is necessary for the appellant in such case to establish that
the other spouse has without reasonable excuse withdrawn from the society of
the petitioner. The Court in such case if it is satisfied as to the truth of the
averments made in the petition and also that there is no other legal ground as
to why the petition/application shall not be granted, may decree restitution of
conjugal right, as prayed for. In the case of Lachman Uttamchand v. Meena
reported in AIR 1964 SC 40, the Constitution Bench of the Apex Court made
reference to settled law as to burden of proof in such cases. It was observed
that heavy burden lies upon a petitioner who seeks relief on the ground of
desertion to prove four essential conditions, namely (1) the factum of
separation; (2) animus deserendi; (3) absence of his or her consent and (4)
absence of his or her conduct giving reasonable cause to the dewserting spouse
to leave the matrimonial home. It was also further observed that he or she has
to establish beyond reasonable doubt, to the satisfaction of the Court, the
desertion through the entire period of two years (then statutory period required
under Section 9 of the Hindu Marriage Act) before the petition as well as that
such desertion was without just cause. In other words, even if the wife, where
she is the deserting spouse, does not prove just cause for her living apart, the
petitionerhusband has still to satisfy the Court that the desertion was without
just cause. Coming back to facts of the present case, although appellant had
received notice dated 9.5.1998 (exhibit 44), appellant did not allege essential
ingredients in respect of valid marriage (Nikah) as well as desertion according
to law by the respondent which can constitute proof of a valid marriage and
then desertion by her. In his reply to notice from the respondent (exhibit 45) no
whisper was made about actual cohabitation and consummation of marriage
between appellant and respondent for a period of four months which he claims
in the petition nor there is any reference to the alleged fact of visit to the house
of respondent’s parents and refusal by respondent’s father to allow entry to the
appellant in his house. The appellant did not plead in his petition that he and
respondent had cohabited for a period of four months, as alleged, as also
desertion (intentional abandonment) by the respondent. In these
circumstances, when the appellant had failed to prove desertion, as alleged, the
onus never shifted upon the respondent to show that she had withdrawn from
his society with reasonable cause. Thus, looking at the evidence recorded
before the Family Court and also pleadings, it has to be concluded that there
was no satisfactory evidence so as to furnish a legal ground for the decree of
restitution of conjugal right on the ground of desertion by the respondent. That
being so, second point must also be answered in the negative. It is answered
accordingly.
14. The last question is as to whether the appellant is entitled to a
decree for restitution of conjugal right. In our opinion, 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 kiil 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 practicing 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 civiol 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/ for to return
document on which he had obtained signature of the respondent under threat
and by force. We feel, 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. Learned 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 us 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, we do not find any ground made out for to interfere with
the impugned judgment and order.
15. In the result, therefore, the appeal must be dismissed. Appeal is
accordingly dismissed with costs.
A. P. BHANGALE, J B. P. DHARMADHIKARI, J
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