Citations: Itwari Vs Asghari & Ors., AIR 1960 All 684

Date of Judgement: 29/08/1959

Equivalent citations: 1959 SCC OnLine All 150: 1960 All LJ 523:

Case No: S.A. No. 66 of 1959

Case Type: Service Appeal

Appellant: Itwari

Respondent: Asghari & Ors.

Bench: Hon’ble Mr. Justice S. Dhavan

Court: Allahabad High Court

Statutes Referred

  • Code of Criminal Procedure, 1973; Section 488
  • Indian Contract Act, 1872; Section 3, 23
  • Code of Civil Procedure, 1908; Order 41, Rule 11

Cases Referred

  • Moonshee Ruheem Vs Shumsoonissa Begum 11 Moo Ind App 55 (609);
  • Abdul Kadil Vs Salima, ILR 8All 149 (FB);
  • Badu Mia Vs Badrannesa, 40 Ind Cas 803: (AIR 1919 Cal 511 (2)).;
  • Sheikh Moh. Vs Badrunnissa Bibee. 7 Beng LR App 5 (sic),
  • Badarannissa Bibi Vs Mafiattala, 7 Beng LR 442. 
  • Ayatunnessa Beebee Vs Karam Ali, (1909) ILR 36 Cal 23;
  • Hamid Hussian Vs Kubra Begum, ILR 40 All 332: (AIR 1918 All 235);
  • Khurshid Begum Vs Abdul Rashid, AIR 1926 Nag 234.
  • Mt. Sofia Begum Vs Zaheer Hasan, AIR 1947 All-16.
  • Simpson’ Vs Simpson, (1951) 1 All ER 955
  • Nawab Bibi Vs Allah Ditta, AIR 1924 Lah 188 (2)


  • In present case notwithstanding the learned District Judge’s decision, a Muslim spouse (Itwari) sued for restitution of conjugal rights against his first wife (Smt. Asghari), who refused to contact him after he had acquired a second wife and accused him of being remorseless to her.
  • Itwari had been married to his first wife around the year 1950 and lived with her for quite a while. At that point things turned out badly and the wife at last left him to live with her parents, however he didn’t try to find a way to bring her back and married with another woman.
  • Under Section 488 of Code of Criminal Procedure, 1973, the first wife, who is a respondent, filed an application for maintenance. The husband then filed a claim for recovery of conjugal rights against her.
  • It was alleged that she had been turned out by her husband who had formed an illicit relationship with another woman whom he subsequently married. She alleged that she is being accused of cruelty by him.
  • The learned Munsif upheld the husband’s action and held that wife had failed to prove that she was really ill- treated and passed an order directing respondent’s father and her two brothers not to prevent her from going back to him.
  • The matter was then taken to the Allahabad High Court in the second appeal.

Issues Involved

  • Whether the appeal is maintainable or not?
  • Whether the husband has been guilty of cruelty?
  •  Whether the suit filed by husband for restitution of conjugal right only as a counter-action to the wife’s claim for maintenance under Section 488 of Code of Criminal Procedure, 1973?

Contention of Appellant

The counsel for Appellant contented that:

  • The belief that if a woman had been abused, she should have received an announcement for dissolution of marriage and conveyed that she had not done so by her better half’s second marriage is strange and contradictory. The primary wife’s right to sue for disintegration of her marriage is based on the husband’s right in requiring a second wife.
  • It was stated that the husband had taken a second wife is no proof of cruelty as every Muslim has right to take several wives up to a maximum of four.

Contention of Respondent

The counsel for Respondent contented that:

  • Husband of Smt. Asghari had formed an illicit relationship with another woman.
  • She had endured discriminatory treatment at his hands, and was influenced by the husband’s behaviour, that he had not forced his second wife to dwell in his house with her.
  • She stated that he had beaten her, denied her of her adornments, and caused her physical and mental anguish.
  • Her husband had also failed to pay her dowry.
  • She also contended that the complaint for restitution of conjugal rights was filed by the husband as a counterclaim to her suit for maintenance.
  • Her husband didn’t try to find a method to bring her back and that his long quietness indicated that he never truly cared for her.


The Appeal was dismissed.

The High Court of Allahabad held that the appeal had been filed with mala fide intention and was thus dismissed it under Order 41, Rule 11, Code of Civil Procedure, 1908. In concurring the opinion of the District Judge that it will be inequitable to compel the first wife to live with such a husband.

Ratio Decidendi

Considering the facts and law stated above, the lower Court has found that the appellant never really cared for his first wife and filed his suit for restitution only to defeat her application for maintenance.

In the circumstances, his suit was mala fide and rightly dismissed.

Obiter Dicta

The Court will also be unjustified in refusing specific performance where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas it’s non-performance would involve no such hardship on the plaintiff.


Appellant respectfully argues for restitution of conjugal rights against his first wife. The High Court of Allahabad thus dismissed the appeal under Order 41, Rule 11, Code of Civil Procedure, 1908 as he never cared for his first wife and filed a suit with mala fide intention to counter- claim the maintenance under Section 488 of Code of Criminal Procedure, 1973.

Drafted By: Samanta Rao, CLS – Gitarattan International Business School

Published On: September 21, 2021 at 13:50 IST

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