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IN THE COURT OF THE DISTRICT JUDGE AT MORIGAON

T.S. (R) Case No. 06/2012

U/S 281 of the Muslim Marriage Act

Present : Md. I. Hussain.

District Judge,
Morigaon.

Md. Abul Kalam Azad : Plaintiff

Vs

1. Mustt. Mofida Khatun

2. Mustt. Nurun Nahar

3. Md. Nuruddin

4. Mustt. Marjina Khatun : Defendants

PARTICULARS OF THE CASE

Date of Filing : 05.04.2012

Date of Evidence : 22.07.2013.

Date of Argument : 03.10.2013.

Date of Judgment : 01.11.2013.

JUDGMENT

1. This is a matrimonial dispute arising out of a petition

filed by the applicant Md. Abul Kalam Azad praying for a decree

of restitution of conjugal rights between the plaintiff and

defendant No. 1.
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2. The case in brief of the plaintiff is that the marriage

between the plaintiff and the defendant No. 1 was solemnized

about six months back from the date of filing the case on fixing

Mahar amount at Rs. 5000/ as per Muslim rites and were living

together as husband and wife at the plaintiff’s house and no

child was born out of their cohabitation. Defendant Nos. 2, 3, 4

and 5 are father, mother and family members of defendant No.

1. The family status of the defendant is higher than the plaintiff

and hence defendant No. 1 always showed her dissatisfaction to

the plaintiff, who is an educated unemployed youth having no

means to maintain his family. Defendants demanded Rs. 50,000/

from the plaintiff and put him in dire consequence, if the

demand has not fulfilled. Plaintiff could not fulfill the demand as

he is an unemployed. Plaintiff is suffering from serious tension in

absence of defendant and he cannot go the father-in-law’s

house as they will cause grievous injury or death to fulfill their

conspiracy. On 25.02.2012, all the defendants came to plaintiff’s

house and asked Talaque from the plaintiff, but he refused to

give Talaque to the defendant, as a result defendant No. 1

disclosed that she will not cohabit and enjoy conjugal life with

the plaintiff. So, plaintiff is compelled to approach the Court to

pass a decree for restitution of their conjugal right.

3. Defendant No. 1 contested the suit by filing written

objection. She has denied the allegations made by the plaintiff in

his petition. It is submitted that the petition is not maintainable,

suit is defective for mis-joinder of parties, plaint is not properly

signed and verified, there is no cause of action. Contesting

defendant denied the Mahar amount as Rs. 5000/ but stated it

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as Rs. 50,000/ and denied the averments of paragraph 4, 5 and

6. She has stated that plaintiff has no capacity to cohabit and

cannot give sexual pleasure to the defendant No. 1 as he is

suffering from “Dhajabhanga”. He has not committed sexual

intercourse with the defendant No. 1. Moreover, plaintiff is

suspicious minded and suspected the defendant No. 1 with any

person, while she talked with him. Plaintiff showed cruelty and

inhuman torture to defendant No. 1 for which she cannot live

with the plaintiff. As such, the defendant No. 1 prayed to dismiss

the petition.

4. Upon the pleadings of the parties, following issues

were framed –

i. Whether the suit is maintainable in its present form ?

ii. Whether the plaintiff has no capacity to cohabit with

defendant No. 1 due to suffering of “Dhajabhanga” ?

iii. Whether the defendant No. 1 showed her

dissatisfaction to the plaintiff due to her higher status

than the plaintiff and abstain from enjoying conjugal

life ?

iv. Whether the plaintiff treated the defendant No. 1

with cruelty ?

v. Whether the plaintiff is entitled to get a decree as

prayed for ?

vi. To what relief/reliefs the parties are entitled ?

5 Plaintiff side filed evidence on affidavit of himself

only. Defendant No. 1 though filed written statement but

remained absent without step. So, case proceeded ex-parte. I

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have carefully gone through the evidence and other materials on

record.

Discussion, Decision and Reasons thereof

6. Issue No. 1 :- Contesting defendant took the plea

that the suit is not maintainable in its present form, but she did

not turn up after filing written statement. As such no argument

has been placed from her side to show about non maintainability

of the suit. On the other hand, learned counsel for the plaintiff

submits that the suit is maintainable as the contesting defendant

is the wife of the plaintiff and his wife refuses to cohabit with

him without lawful cause. On perusal of the plaint, it is found

that the plaintiff failed to mention specifically the cause of action

of the suit, which is the starting point of a suit. Plaintiff though

stated in paragraph No. 1 that the cause of action arose on

18.02.2012, but failed to explain the occurrences of arising the

cause of action for the suit on 18.02.2012. On the other hand,

plaintiff stated in paragraph 6 that defendant along with other

defendants came to plaintiff’s house on 25.02.2012 and

demanded ‘Talaque’ from the plaintiff, to which he refused. Thus

the date of occurrence is found inconsistent. In his evidence on

affidavit also, plaintiff failed to state the date of arising cause of

action for the suit as well as the occurrence. Cause of action is

an essential factor to file a suit, upon which the suit is required

to be adjudicated as per law. But, the plaintiff failed to mention

the date of occurrence from which the contesting defendant

ceases to cohabit with him.

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7. It appears from the pleading as well as from the

evidence of the petitioner that there is no dispute as regard their

marriage, but they made allegation and counter allegation

against each other. On the above rival contentions, let us see

how far the plaintiff can discharge his burden in respect of

proving his case on preponderance of probabilities. Discharge of

burden, in a matrimonial case, rests on the plaintiff and the

Hon’ble the Apex Court in Dastane Vs Dastane; AIR 1975 SC

1539, held as follows -

“24. The normal rule which governs civil proceedings is that a fact

can be said to be established if it is proved by a preponderance of

probabilities. This is for the reason that under the Evidence Act,

Sec. 3, a fact is said to be proved when the court either believes it

to exists or considers its existence so probable that a prudent

man ought, under the circumstances of the particular case, to act

upon the supposition that it exists. The belief regarding existence

of a fact may thus be founded on a balance of probabilities. A

prudent man faced with conflicting probabilities concerning a fact

situation will act on the supposition that the fact exists, if on

weighing the various probabilities he finds that the

preponderance is in favour of the existence of the particular fact.

As a prudent man, so the court applies this test for finding

whether a fact in issue can be said to be proved. The first step in

this process is to fix the probabilities, the second to weigh them,

though the two may intermingle. The impossible is weeded out at

the first stage, the improbable at the second. Within the wide

range of probabilities the court has often a difficult choice to

make but it is this choice which ultimately determines where the

preponderance of probabilities lies. Important issues like those

which affect the status of parties demand a closer scrutiny than

those like the loan on a promissory note : “the nature and gravity

of an issue necessarily determines the manner of attaining

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reasonable satisfaction of truth of the issue”. Per Dixon J. in

Wright v. Wright, (1948) 77 CLR 191 at p. 210; or as said by Lord

Denning “the degree of probability depends on the subject matter.

In proportion as the offence is grave, so ought the proof to be

clear. Blyth v. Blyth, 1966-1 All ER 524 at p. 536”. But whether the

issue is one of cruelty or of a loan on pro-note, the test to apply

is whether on a preponderance of probabilities the relevant fact is

proved. In civil cases this, normally, is the standard of proof to

apply for finding whether the burden of proof is discharged.”

8. In compliance of the above observation, if we

scrutinize the evidence in proving the case of the petitioner on

preponderance of probabilities, it is found some material

discrepancies in the evidence of the petitioner side. Plaintiff

stated in his evidence that the mother-in-law Musst. Nurun

Nahar, brother-in-law Marjina Khatun excited Mofida Khatun

not to spend conjugal life with the plaintiff as his family status

is not higher than the family status of his wife. It is also alleged

that the family members of his mother-in-law’s house

demanded Rs. 50,000/, which he could not pay as he is poor

and having no source of income. This fact appears to be not

probable to exist as per a prudent man, because the plaintiff

stated that the marriage was solemnized as per Islamic rites.

Marriage is a social tie between a male and a female and when it

is solemnized with the consent of both sides as per religious

rites, than demand of any amount from the side of the bride will

not arise. On the other hand, contesting defendant stated in her

written statement that the plaintiff is suffering from

“Dhajabhanga” and has no capacity to cohabit and also failed to

give sexual pleasure to her. Plaintiff did not deny this fact in his
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evidence on affidavit. So, there appears that the contesting

defendant left her husband’s house with some definite cause. As

the plaintiff did not deny the causes shown by the contesting

defendant in her written statement, hence it cannot be said that

the wife ceases to live with the husband without any cause.

9. Section 281 of the Mohmedan Law, provides that the

husband may sue the wife for restitution of conjugal rights,

when the wife without lawful cause ceases to cohabit with her

husband. But, from the above discussion, it is found that the

plaintiff has failed to proof in preponderance of probability that

the contesting defendant refused to cohabit with the plaintiff

without any cause. When the plaintiff could not proof the basic

ingredient of the suit filed under Section 281 of the Mohmedan

Act, then it cannot be said that the suit is maintainable under

said Section of law. In view of the above discussion and reasons

stated, I have come to the conclusion that the petitioner has

failed to prove his case in preponderance of probability and

hence I find and hold that the contesting defendant never ceases

to cohabit with the plaintiff without any cause. As such, Issue

No. 1 is decided into affirmative and against the plaintiff.

10. Issue Nos. 2, 3 and 4 :- In view of my discussion in

Issue No. 1 and the decision arrived in that issue, I do not think

it necessary to discuss and decide the Issue Nos. 2, 3 and 4.

Hence, the above issues are left undecided, considering the

decision of Issue No. 1 that the suit is not maintainable.

11. Issue Nos. 4 & 5 :- In view of the above discussion

on the evidence on record and reasons stated and also the

decision arrived at in Issue Nos. 1, I have come to the

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conclusion that the plaintiff is not entitled to any relief as

prayed for. Accordingly, Issue No. 4 and 5 are also decided in to

negative.

ORDER

12. Under the above facts and circumstances and also

the decisions arrived at in issue No. 1, the prayer of the plaintiff

for a decree of restitution of conjugal right with the defendant

No. 1 is hereby rejected.

Prepare the decree accordingly.

Parties will bear their own cost.

Judgment prepared and delivered in the open Court on

this 1st day of November, 2013 under my hand and seal.

District Judge
Morigaon