Dhruba Lal Bhattacharyya v. Chinu Bhattacharyya — 1993 DIGILAW 26 (GAU)

This appeal is by the plaintiff against the judgment and order dated 10.9.90 passed by the learned District Judge, Nagaon in Title Suit No. 4 of 1989. By the impugned order the petition filed by the present appellant as plaintiff against his wife under section 9 of the Hindu Marriage Act, 1955, for short the Act, for restitution pf conjugal rights was dismissed. 2. There is no dispute that defendant-respondent is the wife of plaintiff appellant and they have one son and one daughter and that the marriage took Place On 27.5.1984. It is also not disputed that at that time plaintiff-appellant was in military service. Plaintiff took voluntary retirement from service and thereafter he was residing in the house of his wife at Jagiroad and started a cycle shop. As the business failed plaintiff-appellant came back to his house at Samuguri in December, 198/. According to plaintiff-appellant at that time be requested defendant-respondent to accompany him to Samuguri but on different pretext she refused to do so and also kept both the son and daughter with her. It has also been alleged that after coming he requested his wife several times to come to Samuguri but she with collusion with her brother and father refused to join him at Samuguri. Thereafter on 20.4.88 the plaintiff-appellant sent a Lawyer's notice without any result. Plaintiff appellant has alleged that respondent-defendant has withdrawn from the society of the plaintiff-appellant without any reasonable excuse and hence the petition for restitution of conjugal right and also custody of the minor son and the daughter. 3. The suit was contested by the defendant-respondent and has stated that the plaintiff-appellant is not entitled to any relief. According to defendant-respondent the plaintiff-appellant never took her to his original house and used to reside in the house of her father at Jagiroad. It has been stated that as the petitioner was in military service and in his absence, parents of the defendant-respondent and her brothers used to look after her. And after retirement the plaintiff-appellant resided at her parent's house and started the cycles shop with money given by her brothers. In the written statement it has been stated that after few days the plaintiff-appellant deserting the defendant-respondent and their children, fled away with the money and he never took care of his wife and their children. And after retirement the plaintiff-appellant resided at her parent's house and started the cycles shop with money given by her brothers. In the written statement it has been stated that after few days the plaintiff-appellant deserting the defendant-respondent and their children, fled away with the money and he never took care of his wife and their children. So finding no other alternative the defendant -respondent filed a petition under section 125 CrPC for maintenance for herself and their children which has registered as MR Case No. 38 of 1988 in the Court of Morigaon. It has been alleged that after 'Coming to know about this case the present petition has been filed only to harrass defendant-respondent. It has also been stated in the written statement that the plaintiff-appellant filed a false criminal case in the Court at Morigaon being CR Case No. 887 of 1988 and in that case all the belongings of the defendant-respondent were seized but given in her zimma. The revision petition filed by the plaintiff-appellant was also dismissed. It has been denied that the defendant-respondent has withdrawn herself from the society of the petitioner and it has been alleged that it was the plaintiff-appellant who deserted the defendant-respondent and her children has filed this false case In order to avoid the payment of maintenance. A specific statement has been made that had the plaintiff-appellant any intention of co-habitation with the opposite party he could have come and resided with the defendant-respondent at her house at Jagiroad. 4. Both the plaintiff-appellant and the defendant-respondent deposed before the Court and in addition the defendant-respondent examined one 'Mridul Kanti Chowdhury as DW 2. 5. The learned trial Court framed as many as four issues and the main issue was whether the opposite party has withdrawn herself from the society of the petitioner without any reasonable cause and this issue was decided against the present appellant. The learned Court held that parties have ''strained relationship since the very moment of their marriage." The Court also noted that the appellant filed criminal case and got the belongings of his wife's seized and is living separately without any ostensible means of livelihood and has no personal income and never paid 'alimony to his wife1. On these findings the Court held that there was cruelty on the part of the appellant. On these findings the Court held that there was cruelty on the part of the appellant. It was also held that the appellant left the respondent "un-cared un-protected and now she feels un-safe to be in the company of the plaintiff." The lower Court was the opinion that the respondent has right to stay apart from her husband. Finally the trial Court held that the respondent has established that her withdrawal from the society of the appellant was on the basis of reasonable excuse and that the appellant deserted the respondent. 6. Heard Mr. KK Mahanta, learned counsel for the appellant and Mr. ,AH Saikia, learned counsel for the respondent. 7. Section 9 of the Act inter-alia provides that when either the husband or the wife has without reasonable excuse withdrawn from the society of the other, the aggrieved party may approach the Court for restitution of conjugal rights. In the explanation to the said section it is provided that where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society. 8. In the case in hand there is no dispute that the plaintiff-appellant after he left the services of the armed forces stayed in the house of his wife for sometime and thereafter he shifted to his own place at Samuguri and his wife, namely, the respondent did not follow him. In the petition it has been stated that, he made verbal requests followed by a legal notice to respondent asking her to reside with him at Samuguri. It is true that regarding verbal requests there is no evidence accept the evidence of the plaintiff-appellant but that notice was issued by the plaintiff-appellant and received by the respondent-defendant is not disputed. Therefore, after receiving notice the wife did not join the husband, therefore, the only point to be decided in this appeal is whether there was reasonable excuse for the wife to withdraw from the society of her husband. In view of the above explanation the burden is on the respondent-defendant to prove the presence of reasonable excuse. 9. It is settled law that no amount of evidence can be looked into unless it is pleaded in the pleadings. In view of the above explanation the burden is on the respondent-defendant to prove the presence of reasonable excuse. 9. It is settled law that no amount of evidence can be looked into unless it is pleaded in the pleadings. In the written statement filed before the learned trial Court no plea was taken that the plaintiff-appellant has no personal income to maintain his family and that there was mental cruelty. That apart, in the written statement it has been specifically stated that the plaintiff-appellant could come and stay with the respondent-defendant at her house if he has any intention of co-habitation. Therefore the findings of the learned trial Court regarding inability on the part of the plaintiff-appellant to maintain his family cannot be accepted as this was not pleaded in the written statement. The finding of the learned trial Court that the "couple has a strained delation-ship since the very moment of their marriage" is also not acceptable in absenoe of any pleading on this point and there is also no evidence. The learned trial Court has also held that the plaintiff was addicted to drinks. This is also not acceptable as this was not pleaded in the written statement. 10. Before I proceed to discuss the evidence on record to decide the point as stated above, let me state here that the whole object of section 9 of the Act is to bring about co-habitation between the parties so that they can live together in the matrimonial home in amits. This remedy is for preserving the marriage and not for destroying it. The only thing that has to be ascertained is that the party who has started the process for invoking jurisdiction under section 9 of the Act must show that he is sincere and that he has bonafide desire to reside together with his wife. Mr. Mahanta, learned counsel appearing on behalf of the appellant has placed before this Court decisions on the above point; one rendered by the Delhi High Court and the other by the Punjab and Haryana High Court. The said decisions are, Smti Harvinder Kaur vs. Harmand r Singh Choudhury, AIR 1984 Delhi 66 and BR Syal ys. Smti Ram Syal, AIR 1968 Punjab and Haryana 489. I am in respectful agreement with the law laid down in the above decisions. 11. Mr. The said decisions are, Smti Harvinder Kaur vs. Harmand r Singh Choudhury, AIR 1984 Delhi 66 and BR Syal ys. Smti Ram Syal, AIR 1968 Punjab and Haryana 489. I am in respectful agreement with the law laid down in the above decisions. 11. Mr. Saikia, learned counsel for the respondent has urged that there was legal cruelty on the part of the husband inasmuch as he filed a criminal case against respondent and got her property seized. According to the learned counsel the present petition has been filed only to avoid payment of- maintenance for which a petition under section 125 CrPC has been filed. In this connection learned counsel has placed reliance in Shyamlal ys.Smti Saraswati Baiv AIR 1967 MadhyaPradesb 204. The 'Madhya Pradesh High Court Ift the" aboVe casei considered 'just cause' and also 'legal cruelty'. According to the High Court 'legal cruelty' has to be considered by keeping in view the physical and mental condition of the parties, their age, environments, standard of culture and status in life. It was also laid down that in matrimonial offences the relief which is sought must be established beyond reasonable doubt. According to the learned counsel in the case in hand the appellant has failed to prove his case and 'from the facts and circumstances of the case it has been established that there was legal cruelty on the part of the husband. In- reply Mr.Mahanta has drawn attention of this Court to written statement wherein the idefendant-respondent has specifically stated that the plaintiff-appellant could go and stay in the house of the defendant-respondent. 12. It is true that the plaintiff-appellant filed one criminal case against the defetidant-respondent and that a proceeding under section 125 CrPC has also been initiated by the defendant-respondent. But' I am unable to hold from these criminal 'proceedings that there was legal cruelty on the part of the plaintiff-appellant. There was no allegation of physical torture in the written statement. I also accept the conection of Mr. Mahatma that the very fact that in the written statement it has been stated that the plaintiff-appellant could go and stay with the defendant-respondent at her house would be sufficient to hold absence of cruelty whether mental, physical or legal. 13. There was no allegation of physical torture in the written statement. I also accept the conection of Mr. Mahatma that the very fact that in the written statement it has been stated that the plaintiff-appellant could go and stay with the defendant-respondent at her house would be sufficient to hold absence of cruelty whether mental, physical or legal. 13. It has already been stated in this judgement that there was no plea on the part of the defendant-respondent that the husband is not capable of maintaining his wife and the children. He has left the house of his father-in-law and residing separately. It is duty of the wife to follow her husband in absence of any reasonable excuse. In the case in hand the defendant-respondent has failed to prove that there is, reasonable excuse for her withdrawal from the society of the husband. In the evidence the defendant-respondent tried to make out a Case that the plaintiff-appellant use to drink and assault her. But this plea was never taken in the written statement and therefore this evidence cannot be accepted. 14. Mr. Saikia learned counsel tried to make out a case that after marriage the defendant-respondent stayed in her father's house where the plaintiff-appellant also used to reside after you left the service as a Member of the Armed Force. But I find in the evidence that after marriage for sometime the plaintiff-appellant was reside with her husband at his place of pooling and their first child was born there. That apart, merely because for plaintiff-appellant was residing in the house of his father-in-law aground for his wife not to accompany him to his own house. This is my opinion cannot be reasonable excuse for withdrawing from "the society of her husband as envisaged in section 9 of the Act. 15. I may refer to some of the decision referred to by Mr. Mahanta. In Gaya Prasad vs. Bhagwati, AIR 1966 Madhya Pradesh 212, the wife accepting service without the consent of the husband at a place different from tie home of the husband to augment family income and the husband calling her wife to leave the service and live with him at his place, which was refused by his wife and it was held that wife had withdrawn without reasonable excuse from the society of the husband. In Smti Jagjit Kaur vs. Ekam Singh, AIR 1973 Punjab and Haryana 355 it was held that staying away from her husband on the ground that the husband refused to migrate to the wife would amount to wife's staying at her own place without reasonable excuse. In Smti Surinder Kaur vs. Gurdeep Singh, AIR 1973 Punjab and Haryana 134 the wife accepted employment without the consent of her husband at a different place from the home of the husband and it was held that wife has withdrawn from the society of her husband without reasonable excuse. I am in respectful agreement with the above decisions. 16. Reliance has been placed in a decision of House of Lords in Gollins vs Gollins, 1964 A peal Cases 644. From the facts of that case I am of the opinion that the ratio laid down in that case is not relevant for the present purpose. 17. For the reasons stated above I find merit in the present appeal and accordingly it is allowed by setting aside the impugned judgment and order passed by the learned District Judge, Nagaon. The suit of the plaintiff-appellant is decreed for restitution of conjugal rights and also for custody of the minor children. No costs.