ABDUL BAQI vs ABDUL BASIR QURESHI AND Other
This matter originated from a petition for special leave to appeal against a High Court order dismissing a writ petition regarding the restitution of conjugal rights. The core legal question was whether a decree for the restitution of conjugal rights could be sustained when the husband had issued a notice of Talaq (divorce) and had allegedly attempted to subject his wife to unnatural sexual intercourse. The Supreme Court upheld the decision of the Additional District Judge, which had set aside the trial court's decree for restitution. The Court held that the trial court erred in granting restitution because the husband had failed to prove the withdrawal of the notice of Talaq, and the finding that the husband attempted to subject the wife to unnatural intercourse provided a valid legal ground to decline the decree for restitution. The judgment reinforces the principle that a decree for the restitution of conjugal rights cannot be granted where the husband's conduct, such as attempted unnatural acts, renders cohabitation unsafe or inappropriate, and where a valid notice of Talaq remains unwithdrawn.
- Can a decree for restitution of conjugal rights be granted if the husband has issued a notice of Talaq that remains unwithdrawn?
- Does an attempt by a husband to commit an unnatural offence upon his wife constitute a valid ground to deny a decree for restitution of conjugal rights?
ORDER
MUSHTAQ HUSSAIN, J.-Abdul Baqi and Nayyara Siddiqui were married Mss on 7-1-1961 and Rs.
5,000 was fixed as the dower. She lived with him for month where after her husband shifted to her house and lived there for a months. Thereafter they started living separately. On 20-9-1971 eight or restitution of conjugal rights, was filed by Abdul Baqi and on a suit f 30-11-1971 Nayyara filed, a suit for the payment of her prompt dower. -1972 she filed a suit for maintenance. In answer to the suit for On 24 2 the wife alleged that the husband had tried to commit an unnatural restitution offence upon her, had not paid her maintenance and had also not paid her prompt dower where for the prayer for restitution was contested. The two suits for restitution and the suit for dower were consolidated and common issues were framed.
2. On 19-4-1975 the suit for dower was decreed. So was the suit for restitution but it was conditional upon the payment of prompt dower. On 29-5-1975 the wife appealed against the decree in the suit for restitution and the same was accepted by the learned Additional District Judge, Camp--bellpur on the force of the notice of Talaq given by the husband to the wife. The petitioner, therefore, filed a writ petition in the High Court which was dismissed on 1-3-1975. Hence this petition for special leave to appeal.
3. It has been submitted before us that Notice of Talaq was withdrawn -1974. As pointed out by the learned Additional District Judge in paragraph 8 of the judgment, there is not even an iota of evidence on the record which points to the withdrawal of the notice of Talaq given by the petitioner. The learned Additional District Judge was, here fore, right in, that the learned Civil Judge wrongly ignored it and should not have in the circumstances passed the decree for restitution of conjugal rights. Moreover having found that the petitioner wanted to subject Nayyara to unnatural intercourse, the learned Judge had no option but to decline to, affirm the decree for restitution. He therefore, rightly accepted the appeal. We find no fault with the order of the learned High Court and would, therefore, dismiss this petition for special leave to appeal.