Jahar Hossain Bhuiya vs Hasina Begam

S. Talapatra, J.—1. In terms of the Principles of the Mohammedan Law as recorded in Mulla''s Principles of Mohammedan Law, 19th edition in Section 281, the appellant has filed an application for restitution of the conjugal rights as the respondent left the matrimonial home without any reasonable cause. However, the respondent by filing a written objection to that application has emphatically stated that she was tortured, even on some occasions there was attempt to kill her and finally she was driven away from the matrimonial home with her suckling baby.

For absence of the appellant on 24.04.2013 the proceeding being T.S. (R.C.C) 18 of 2012 was declared to proceed ex-parte. It further appears from the record that by filing the Civil Misc No. 02 of 2013, there had been an endeavour from the appellant to get that ex-parte order set aside, but by the order dated 31.07.2013 passed in Civil Misc 02 of 2013, the said prayer was dismissed.

On appreciation of the evidence it has been held that whether leave was denied or not by the higher authority, cannot be ascertained from the records as no paper was admitted in the evidence even the prayer for granting leave by the petitioner, the appellant herein was not submitted. Only by oral evidence it was sought to be established that leave was not granted on 24.04.2013. The trial court had questioned that why the father who was present in the court did not pray for further time and nothing has been explained in this regard. Thus, sufficient cause was not shown to hold that the appellant was prevented to submit evidence. Hence, the prayer for setting aside the ex-parte judgment was dismissed.

By the judgment and order dated 15.05.2013, the application for restitution of conjugal rights was dismissed. Being aggrieved by that judgment and order dated 15.05.2013 this appeal has been filed before this Court.

Mr. D.K. Daschoudhury, learned counsel appearing for the appellant has submitted that neither of the parties was aided by any counsel who is expert in the procedural law or other technicalities of the proceeding. As a result when on 24.04.2013 the evidence was to be recorded, absence of the appellant in the proceeding was not properly placed, even though it has been recorded in the order dated 31.07.2013 that the father did not pray for further time. Mr. Daschoudhury, learned counsel for the appellant has submitted that one application was filed informing the reasons for absence of the appellant, even the father had communicated to the Court, but that was not considered by the Judge, Family Court Udaipur, Gomti Tripura. According to Mr. Daschoudhury learned counsel appearing for the appellant, the appellant was absent only on 24.04.2013 and for that, the entire proceeding was declared ex-parte and the judgment was passed on 15.05.2013.

The attempt made by the appellant to get the ex-parte judgment set aside has failed for the reasons stated in the order dated 31.07.2013. As a result, the appellant had no other option but to approach this Court by filing an application under Section 19(1) of the Family Courts Act, 1984.

From the other side Mr. G.S. Bhattacharji, learned counsel appearing for the respondent has submitted that when the respondent-wife was battered and tortured in the matrimonial home and compelled to leave the matrimonial home with her sucking baby, the restitution of conjugal rights is a far away music. The respondent-wife is not inclined to join the appellant-husband in the matrimonial home.

Having regard to the rival contentions as well as the records of the Court, this Court finds that the judgment and order dated 15.05.2013 delivered in T.S. (R.C.R.) 18 of 2012 is cryptic and it does not even record the description of the fact and reasons on the basis of what, the judgment is passed.

That apart, when the appellant has submitted that he could not manage leave on 24.04.2013, this Court is really at its wit''s end why the Judge, Family Court, Udaipur had disbelieved the appellant. If there was disruption in the proceeding, the appellant should have been slapped with some costs, but for the substantial ends of justice the Judge, Family Court should have allowed the appellant by way of accommodation and by allowing the appellant to adduce his evidence in the trial for deciding the fate of the appellant''s application for restitution of the conjugal rights.

By denying that, according to this Court, there had been denial of justice. As such, the order dated 31.07.2013, delivered in Civil Misc No. 02 of 2013 in relation to T.S. (R.C.R.) 18 of 2012 is set aside.

This Court is of the further view that the ex-parte judgment dated 15.05.2013 delivered in T.S. (R.C.R.) 18 of 2012 is as well liable to be interfered with and quashed and accordingly the same is quashed. However, we are of the considered view that the matter should be remitted back for retrial from the stage of evidence. Even the respondent shall be given fresh opportunity of leading her evidence as the appellant''s evidence may require her to place fresh evidence.

As the matter is pending in the court of the Judge, Family Court, Udaipur, Gomti Judicial District since 2012, the Judge Family Court, Udaipur, Gomti Judicial District is directed to complete the proceeding preferably within 6 months from the date of receipt of the copy of the judgment of this Court. If the Judge, Family Court, Udaipur, Gomti Judicial District finds that if the initiative for re-conciliation is taken that may result in reconstruction of the relation between the parties, he is at liberty to take such initiative.

With this observations and directions, this appeal is partly allowed to the extent as indicated above. Draw the decree accordingly.

Send down the LCRs in the Court of the Judge, Family Court, Udaipur, Gomti Judicial District for the above purpose.