Aparesh Kumar Singh, J. - (1.) Heard learned counsel for the parties.
(2.) Husband is aggrieved by dismissal of his Matrimonial Suit No. 262 of 2010 seeking divorce against his wife, respondent herein, under Section 307(3) of the Mohammedan Law vide judgment dated 10.08.2016 and decree dated 30.08.2016 by the learned Principal Judge, Family Court, East Singhbhum at Jamshedpur. The suit was dismissed on the ground of maintainability by the learned Family Court holding that under Chapter-16 of the Mulla's Commentary on Mohammedan Law, Muslim husband does not have right to approach the Court for a judicial divorce.
(3.) Background of the case of the parties is being referred to hereinafter to appreciate the issue at hand. Petitioner-husband/ appellant herein asserted through his plaint that his marriage with the respondent was solemnized on 20.02.1990 as per Muslim Law and Muslim rituals. After the marriage, they lived together at Jamshedpur in their matrimonial home, Qr. No.L1/3, Mohini Road, Sakchi, which was allotted to him. But, thereafter, she brought her mother and mother's mother to live with him and they started meeting out cruelty and created troubles in his matrimonial life. A daughter and two sons were born out of their wedlock on 12.04.1991, 10.12.1992 and 25.03.1998. Matrimonial life between the parties was never good. She used to demand entire salary of the applicant and it led to conflict between the spouses. He had purchased a piece of land in the name of the respondent, however, at the instigation of her mother and grandmother, it was sold out. Cases were filed against him and he was sent to jail for about one month. He was ousted from his own quarter as he was not allowed to enter his quarter after coming out from custody on being enlarged on bail. He was admitted in TMH on 25.03.2009 and was operated by a Doctor. Even during that period respondent did not come to see him, as a result of which, relationship between the spouses became very bad. Therefore, prayer for grant of decree of divorce was made. Respondent-wife through her written statement denied the entire allegation. She admitted the marriage and children born out of the wedlock and alleged that applicant used to torture her due to non-fulfillment of demand of dowry. She also denied the allegations against her grandmother, who was a bed ridden patient. She had instituted a case for maintenance as her husband refused to maintain her and her children. He had taken help of gangster friend in committing various forms of cruelty on her. She took the plea of maintainability of suit under the Mohammedan Law. Two issues were framed on the basis of rival pleadings of the parties, which are as under: A. Is the suit as framed maintainable? B. Whether the applicant is entitled to a decree of divorce? On behalf of applicant, Md. Yusuf examined himself as witness and supported his case and has reiterated the statement made in the plaint. He deposed during crossexamination that he was employed in Tata Steel as a labourer. He was matriculate. He had instituted Eviction Suit bearing No. 73/11 for eviction of his wife from the house allotted to him He admitted that a case under Section 498A of the IPC was instituted against him. Cross-examination was made in respect of the acts of his friend Ismail Azad. His salary certificate was exhibited as Ext.B. He reiterated the acts of cruelty meted out to him, during his cross-examination. His mother, who is other witness, reiterated the statement made in his plaint as well as in his evidence. She stated that parties are not living together since more than 10 years and she could not remember the cases where she had deposed as a witness. She could not say when her son was admitted in hospital and when he was discharged. Respondent-wife examined herself as witness and supported her contention as made in the written statement. During her cross-examination, she accepted institution of various cases and that she had given evidence in different cases instituted at her instance. She also deposed about the marriage of her daughter in her cross-examination. She further alleged that a friend of her husband in collusion with her husband tried to commit rape on her, which led to institution of a case. She had also filed a case under Section 498A of the IPC where her children are witnesses. She admitted that her husband was taken into custody for about 15-20 days. She said that she had attended her husband in the hospital in the year 2008. She denied to have kept any tenant in the quarter. ;