Sita Ram v. Narbada — 1997 DIGILAW 857 (RAJ)

Honble SINGH, J.–Heard the learned counsels for the parties. (2). This appeal is directed against the judgment dated 3.8.1996 passed by the learned Judge, Family Court Udaipur in Civil Misc. Case No. 212/95 Sita Ram vs. Smt. Narbada alias Guddi & Anr., whereby he dismissed the petition filed by Sita Ram u/S. 13 of the Hindu Marriage Act and allowed the petition filed by Smt. Narbada (respondent and non-petitioner No.1) u/S. 9 of the Hindu Marriage Act. (3). The facts giving rise to present litigation between the appellant and the respondent may be briefly summarised as below: (4). The marriage of the appellant (Sita Ram) with the respondent (Smt. Nar- bada) was solemnised in the month of April, 1984 according to Hindu rites. After their marriage they lived together and during this period the respondent gave birth to two children Nitesh and Kapil. According to respondent, about two years before the filing of the petition u/S. 13 of the Hindu Marriage Act, the respondent left the house of the appellant with her minor son Nitesh and went to the house of her fa- ther. The appellant tried his best to bring her back but she refused to live with the appellant and continued to reside at her fathers house. On 7.5.1995 the respondent left the house of her father and the information about this fact was given by her parents to the Police. She denied the allegation that she had left the house of the appellant on her own. According to her, the appellant used to beat her and pressu- rised her for bringing money and ornaments from her fathers house. The allegation that she refused to live with the appellant inspite of his best efforts was also denied by her. The allegation that she had left the house of her father and the father had reported the matter to the Police and Police had recovered her was also denied by her. In her reply she made a counter allegation to the effect that the appellant was living in adultery and had illicit relation with several other ladies and he had often expressed desire to marry another woman. In her reply she made a counter allegation to the effect that the appellant was living in adultery and had illicit relation with several other ladies and he had often expressed desire to marry another woman. Regarding her relationship with Kailash who was impleaded as non-petitioner No.2 in the petition filed u/S. 13 of the Hindu Marriage Act the respondent Smt. Narbada pleaded that Kailash was a minor aged 14 years and that she treated him as her younger brother and she had no illicit rela- tion with him. (5). The respondent Smt. Narbada filed a petition u/S.9 of the Hindu Marriage Act for restitution of conjugal rights on 30.11.1995. In her petition she alleged that the appellant ill- treated her and that he turned her out on 9.5.1995 after giving her a beating and depriving of her of her ornaments and on being turned out of her house she went to the house of her `mansi Rama Devi, resident of Begu. It was further alleged in her petition that the appellant lodged the first report on 17.5.1995 regarding her elopement with Kailash Mali and that in fact she had gone to her mothers sister house and not with Kailash Mali. It was also alleged that appellant was not keeping her with him since 6.5.1995. A prayer was therefore, made that decree of restitution of conjugal rights be passed in her favour. (6). In reply the appellant contested the application filed u/s. 9 of the Hindu Marriage Act and made allegations to the effect that Smt. Narbada was living in adultery with Kailash and she had eloped with him. The appellant in his reply to the petition filed u/S. 9 of the Hindu Marriage Act prayed that petition filed by Smt. Narbada be dismissed. (7). Both the petitions were consolidated by the learned Judge, Family Court. Four issues were framed by the learned Judge, Family Court. The first issue was relating to allegation of desertion by Smt. Narbada. The second issue was regarding the allegation that Smt. Narbada was living in adultery with Kailash Mali. The third issue was relating to allegation that the appellant had denied the respondent cohabitation conjugal rights without any sufficient cause and the fourth issue was regarding relief. (8). The first issue was relating to allegation of desertion by Smt. Narbada. The second issue was regarding the allegation that Smt. Narbada was living in adultery with Kailash Mali. The third issue was relating to allegation that the appellant had denied the respondent cohabitation conjugal rights without any sufficient cause and the fourth issue was regarding relief. (8). The appellant Sita Ram (AW 1) examined himself as well as Ram Lal (AW 2), Iqbal (AW 3), in support of his petition and in rebuttal of the petition filed by the respondent. The respondent Smt. Narbada (NAW 1) examined herself as well as Hari Narain (NAW 2), Jagdish Chandra (NAW 3) to prove her case. Kailash (NAW 1/2) was also examined. He was impleaded as non-petitioner No.2 in the petition filed by the appellant Sita Ram u/S. 13 of the Hindu Marriage Act. (9). After carefully considering the evidence produced by the parties the lear- ned Judge, Family Court came to the conclusion that the appellant had failed to prove the allegation of desertion and adultery against the respondent. He, therefore, decided issue Nos. 1 and 2 against the appellant and dismissed the petition filed by the appellant u/S. 13 of the Hindu Marriage Act. Issue No.3 was decided in favour of the respondent and in consequence a decree of restitution of conjugal rights was passed u/S. 9 of the Hindu Marriage Act. (10). Feeling aggrieved by the decree passed by the learned Judge, Family Court, Udaipur the appellant has filed this appeal. (11). Efforts were made by us to bring reconciliation between the parties but they did not succeed because the appellant was not prepared to keep the respondent with him. (12). The learned counsel for the appellant has submitted that the findings given by the learned Judge, Family Court, Udaipur are erroneous and in the facts and circumstances of the case issue Nos. 1 and 2 deserve to be decided in favour of the appellant and issue No.3 deserves to be decided against the respondent. He, therefore, prayed that the decree passed by the learned Judge, Family Court, be reversed by granting a decree of divorce in favour of the appellant and by setting aside the decree of restitution of conjugal right in favour of the respondent. (13). He, therefore, prayed that the decree passed by the learned Judge, Family Court, be reversed by granting a decree of divorce in favour of the appellant and by setting aside the decree of restitution of conjugal right in favour of the respondent. (13). On the other hand the learned counsel for the respondent has submitted that the finding of the learned Judge, Family Court are correct. He has, therefore, prayed that this appeal should be dismissed. (14). We have carefully considered the evidence produced by the parties, arguments advanced by the learned counsel of the parties and the reasons given by the learned Judge, Family Court in the judgment. (15). Sita Ram (AW 1) has given evidence to the effect that after her marriage his wife Smt. Narbada lived with him for about 10 years and that she gave birth to two sons Nitesh aged 8 years and Kapil aged 6 years and that she neither liked him nor prepared food for him and on 7.5.1995 she went away to Surat with Kailash and lived there for three months and that she was recovered by the Police in Surat. It was further stated by him that he had no relations with Smt. Narbada for the last two years and that the distance between his house and her father-in-laws house is only five steps and that on 7.5.1995 she went away from the house on the pretext that she was going to attend the marriage of her maternal uncle. Copies of certain documents were also got exhibited by him. These documents has been marked as Exh.1 to Exh.11. (16). Ram Lal (AW 2) has given evidence to the effect that Smt. Narbada dis-appeared from her house and she returned after three months and that some news had been published in news-paper in which it was reported that Narbada and a small child had dis- appeared. (17). Iqbal (AW 3) has given evidence to the effect that he used to visit the tea stall of Sita Ram and sometimes Narbads would leave his son at tea stall and quarrel with Sita Ram. (18). Narbada (NAW 1) has given evidence to the effect that her husband Sita Ram used to beat her and pressurise her to bring 20,000/- to 25,000/- Rs. (18). Narbada (NAW 1) has given evidence to the effect that her husband Sita Ram used to beat her and pressurise her to bring 20,000/- to 25,000/- Rs. from her fathers house and that on 6.5.1995 Sita Ram asked her again to bring money from her fathers house and when she refused his demand he gave her a beating and attempted to kill her by electrolocution and then she went to her mothers sister house situated at Begu and after that her husband (Sita Ram) lodged the FIR that she had eloped with Kailash Mali. It was further stated by her that in view of the fu- ture career of her two minor sons she was prepared to live with her husband. In her cross-examination she was confronted with Police statement Ex.5. (19). Hari Narain (NAW 2) has given evidence to the effect that on 6.5.1995 Sita Ram gave a beating to Smt. Narbada. It is also stated by this witness that Sita Ram used to beat Narbada for the purpose of obtaining dowry and that after that incident Narbada went to her mothers sister house at Begu and lived there for one and half or two months and the report regarding her elopement with Kailash was false. (20). Jagdish Chandra (NAW 3) is one of the uncles of Smt. Narbada. He has stated that her husband used to quarrel with her and that on 10 to 12 occasions Sita Ram had turned Narbada out of her house at night. It is also stated by him that in May, 1995 the parents of Smt. Narbada had gone to attend the marriage and on about 10.5.1995 he came to know about the dis-appearance of Smt. Narbada and then report was lodged at the Police Station but later on he came to know that Nar- bada had gone to her mothers sister house. (21). Kailash (NAW 1/2) has deposed that about one year ago he worked as a servant at the tea stall of Sita Ram. Kailash has further stated that he had gone to Surat with Smt. Narbada and her son Nitesh and at Surat he as well as Narbada had worked in a factory for about two months and that he treated Narbada as his sister and at night he used to sleep outside the room while Narbada used to sleep inside the room. (22). (22). We have carefully considered the evidence produced by the parties. The allegation that Smt. Narbada had deserted the appellant about two years before the filing of the petition u/S. 13 of the Hindu Marriage Act, appears to be completely baseless because in his statement recorded in the trial Court the appellant Sita Ram (AW 1) has nowhere stated that Smt. Narbada deserted him by going away from his house. The issue No.1, was, therefore, rightly decided against the appellant. So far as the allegation of adultery is concerned, the evidence produced by the parties proved nothing more than this that in May, 1995 Smt. Narbada went to Surat with Kailash Mali (NAW 1/2) with her minor son Nitesh and there she worked in a factory for about 2 to 3 months. There is nothing to show that Smt. Narbada had illicit relations with Kailash Mali or that she lived in adultery with him. The only circumstance that she went with Kailash Mali to Surat and at Surat worked in a factory and that at Surat she lived with Kailash is not sufficient to prove that she lived in adultery with Kailash. Smt. Narbada had categorically stated on oath that she had no illicit relation with Kailash and Kailash had also stated on oath that he had no illicit relation with Smt. Narbada. We, are, therefore, of the opinion that the appellant has miserably failed in proving the allegations of adultery against his wife Smt. Narbada. Issue No.2 was rightly decided against the appellant. (23). So far regarding issue No.3, the learned Judge, Family Court has held that it has been proved by the respondent that the appellant has denied conjugal rights without sufficient grounds., In the facts and circumstances of the case, we are of the opinion, that the findings given by the learned Judge, Family Court cannot be said to be unreasonable or perverse. (24). For reasons mentioned above this appeal has no force, it deserves to be dismissed and is hereby dismissed.