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Lal Muhammad Vs. Musammat Shakuran and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in18Ind.Cas.867
AppellantLal Muhammad
RespondentMusammat Shakuran and ors.
Excerpt:
res judicata - restitution of conjugal rights--same question decided in two suits--appeal in one suit--legal cruelty. - - it found, however, that shakuran, the wife, had been very badly treated 'by her husband but it made a decree for restitution. this contention seems to be well founded......was not entitled to a decree for restitution of conjugal rights. before the institution of this suit the wife, had brought a suit for her dower on the allegation that her husband had divorced her. the two suits were tried together by the court of first instance. that court was of opinion that the allegation of divorce was not proved. it found, however, that shakuran, the wife, had been very badly treated 'by her husband but it made a decree for restitution. at the same time it provided in its decree under order xxi, rule 33 of the code of civil procedure that the decree should not be enforced by detention of the wife in prison. the plaintiff appealed from the decree in his suit and the defendant filed cross-objections questioning the correctness of the finding of the first court as to.....
Judgment:

Banerji, J.

1. This appeal arises out of a gait brought by the plaintiff-appellant for restitution of conjugal rights against his wife and her parents. The suit was resisted on two grounds (1) that the plaintiff had divorced his wife and (2) that there was legal cruelty by reason of which the plaintiff was not entitled to a decree for restitution of conjugal rights. Before the institution of this suit the wife, had brought a suit for her dower on the allegation that her husband had divorced her. The two suits were tried together by the Court of first instance. That Court was of opinion that the allegation of divorce was not proved. It found, however, that Shakuran, the wife, had been very badly treated 'by her husband but it made a decree for restitution. At the same time it provided in its decree under Order XXI, Rule 33 of the Code of Civil Procedure that the decree should not be enforced by detention of the wife in prison. The plaintiff appealed from the decree in his suit and the defendant filed cross-objections questioning the correctness of the finding of the first Court as to her allegation of divorce. In her own suit for dower, however, she did not prefer an appeal and the decree in that suit has become final. The lower Appellate Court found that' the cruelty of the husband has been fully proved and that it will be dangerous to order that Shakuran should be made over to Lal Muhammad and his parents.' It proceeded to try the question of divorce and came to the conclusion that it had been proved that Lal Muhammad, plaintiff, had divorced his wife. The learned Subordinate Judge made a somewhat inconsistent decree because whilst upholding the decree of the Court of first instance, he dismissed the plaintiff's suit. The result of the lower Court's decision is that the plaintiff's suit stands dismissed. The plaintiff has preferred this second appeal and he contends that the question of divorce has become res judicata by reason of no appeal having been preferred against the decree in the suit brought by the wife, Musammat Shakuran, for her dower. This contention seems to be well founded. The matter directly and substantially in issue in both the suits was whether Musammat Shakuran had been divorced by her husband. This issue was decided against her by a Court of competent jurisdiction in the suit she had brought for her dower. As she did not appeal against the decree in that suit, the decision, on the issue as to divorce has become final and the same issue could not, after the decision of the first Court on it had become final, be deter mined by the lower Appellate Court. However, both the Courts in this case have found that the wife was treated by her husband with cruelty. As I have said above, the learned Judge of the lower Appellate Court came to the conclusion after examining the evidence that Musammat Shakuran had been treated with extreme cruelty, that there were on her person marks of violence and beating and that it would be dangerous to order her to go back to her husband. There was certainly legal cruelty' which would justify a Court in refusing to make a decree for restitution of conjugal rights and on this ground, the decree of the lower Appellate Court dismissing the plaintiffs suit should, I think, be affirmed. 1 accordingly dismiss the appeal with costs.


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