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Ambalath Veettil thekkethil Mossa Vs. Valiyakath Pathumma and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Judge
Reported inAIR1916Mad707; 30Ind.Cas.924
AppellantAmbalath Veettil thekkethil Mossa
RespondentValiyakath Pathumma and anr.
Cases ReferredRussell v. Russell
Excerpt:
restitution of conjugal rights, suit for - motive or delay, if affects suit--legalcruelty--presumption--keeping low caste woman, if sufficient - .....apprehension of it. that decision is also authority for the position that on the question of legal cruelty, there is no difference between the english law and the muhammadan law. the question of what amounts to cruelty was considered elaborately in russell v. russell (1895) p.d 315: 64 l.j.p. 05. lord justice lopes says: as we read that case, no husband could be found guilty of legal cruelty towards his wife unless he had either inflicted bodily injury upon her, or had so conducted himself towards her as to cause actual injury to her mental or bodily health, or so as to raise a reasonable apprehension that he would either inflict actual bodily injury upon her, or cause actual injury to her mental or bodily health. in a word, he must so have conducted himself towards her as to.....
Judgment:

1. The parties are Muhamadans. The first defendant was married to the plaintiff in 1907. It is found that for some time after that the plaintiff kept a low easte woman as his concubine. It is not clear that at the time of the suit, she was still in his keeping. He married a second wife. He now sues for the restitution of conjugal rights against the first defendant. The District Munsif decreed the suit. The lower Appellate Court has reversed that decision. Hence this second appeal.

2. We are unable to agree with the District Judge. The grounds mentioned by him are not sufficient to nonsuit the plaintiff. It is suggested that this is not a bona fide suit, as it was instituted after the father-in-law sued the plaintiff for moneys due to him. This is not a ground for refusing relief. It was held in Scott v. Scott 4 Sw. & Tr. 113 : 34 L.J. Mat. 23 : 12 L.T. 211 that the Courts are not concerned with the sincerity of the plaintiff's motive, and that if there is no legal defence, the suit should be decreed. Another objection relates to the delay in bringing the suit. That again is no defence to the action. See Beauclerk v. Beaaclerk 71 L.T. 376. The main ground relied upon by Mr. Madhavan Nair is that the plaintiff consorted with a low caste woman and that the defendant has consequently a reasonable apprehension of cruelty. This defence was not put forward in the written statement. The decision in Husaini Begam v. Muhammad Rustam Ali Khan (1907) A.W.N. 27 : 4 A.L.J. 60 on which the District Judge relied, proceeds on the ground that the husband charged the wife with adultery and made other serious unfounded charges. The learned Judges held that such a husband may reasonably be expected to ill-treat his wife. The Judicial Committee in Moomhee Buzloor Ruheem v. Shumsoonnissa Begum 11 M.I.A. 551: 2 Suth. P.C.J. 59 : 20 E.R. 208 have laid down that there must be either actual violence or a reasonable apprehension of it. That decision is also authority for the position that on the question of legal cruelty, there is no difference between the English Law and the Muhammadan Law. The question of what amounts to cruelty was considered elaborately in Russell v. Russell (1895) P.D 315: 64 L.J.P. 05. Lord Justice Lopes says: As we read that case, no husband could be found guilty of legal cruelty towards his wife unless he had either inflicted bodily injury upon her, or had so conducted himself towards her as to cause actual injury to her mental or bodily health, or so as to raise a reasonable apprehension that he would either inflict actual bodily injury upon her, or cause actual injury to her mental or bodily health. In a word, he must so have conducted himself towards her as to render future cohabitation more or less dangerous to her life, or limb, or mental or bodily health.' Lord Justice Lindley concurred in this opinion. Lord Justice Rigby who differed from the opinion of the majority of the Court is in substantial agreement with them on this point.

3. Applying the above tests, we are unable to hold that the defendant has proved that there has been any legal cruelty or any reasonable apprehension of it from the plaintiff. We must, therefore, reverse the decree of the District Judge and restore that of the District Munsif. We make no order as to costs in this and in the Courts below having regard to the relationship of the parties. Three months' time from this day for obeying the decree.


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