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Dharinee Hajjam Vs. Musammat Piari - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1924All836; 78Ind.Cas.190
AppellantDharinee Hajjam
RespondentMusammat Piari
Cases ReferredBai Parioati v. Qanchi Mansukh
Excerpt:
civil procedure code (act v of 1908), order xxi rule 33 (1)--restitution of conjugal rights, decree for--direction that wife shall not be imprisoned--appellate court, interference by--imprisonment, object of. - - it is quite true that this is not a strong case in favour of the wife......a decree, but the court below has added to it a condition that it shall not be enforced by the imprisonment of the wife and it is against this condition that he appeals. order xxi, rule 33 (1) of the civil procedure code expressly permits of such a condition being inserted in the decree, and this court would, ordinarily, be very slow to interfere with the discretion of the court below in a matter of this kind. it is quite true that this is not a strong case in favour of the wife. the allegations of oruelty which she made have been disbelieved. the finding of the learned munsif, which the court below adopts, is that the woman left her husband's house originally in the company of her brothers, but when the time came for her to return she was unwilling to do so. the learned munsif says.....
Judgment:

Daniells, J.

1. This is an appeal in a suit for restitution of conjugal lights. The plaintiff-appellant has been given a decree, but the Court below has added to it a condition that it shall not be enforced by the imprisonment of the wife and it is against this condition that he appeals. Order XXI, Rule 33 (1) of the Civil Procedure Code expressly permits of such a condition being inserted in the decree, and this Court would, ordinarily, be very slow to interfere with the discretion of the Court below in a matter of this kind. It is quite true that this is not a strong case in favour of the wife. The allegations of oruelty which she made have been disbelieved. The finding of the learned Munsif, which the Court below adopts, is that the woman left her husband's house originally in the company of her brothers, but when the time came for her to return she was unwilling to do so. The learned Munsif says that the plaintiff has given no reason for her refusal but that the probabilities are that she is under the influence of a certain barber and that this has induced her refusal. Even in such a case it is possible, if the husband got her back by force, that he might take the opportunity for punishing her for her unfaithfulness. Imprisonment, if allowed in these cases, is not a penalty for anything the wife may have done, but a means of forcibly compelling her return to her husband. As the Bombay High Court remarked in a recent case, Bai Parioati v. Qanchi Mansukh getha 59 Ind. Cas. 861 : 44 B. 972 : 22 Bom. L.R. 097, the tendency of modern legislation is against sending a woman to Jail in such cases, and in fact since this decree was passed the law has been so altered by both Houses of the Legislature as to make imprisonment illegal as a means of enforcing a decree of this nature. The learned Judge has slightly anticipated the amendment of the law. On the whole, I am not prepared to interfere with the discretion exercised by the learned Judge and I accordingly dismiss the appeal though, under the circumstances, without costs.


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