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2000 DIGILAW 142 (ORI)

Sumitra Dei v. Nalu Chhatoi

2000-03-13

P.K.MISRA

body2000
JUDGMENT P.K. MISRA, J. — Wife has filed this appeal against a reversing decision. 2. Plaintiff-respondent had filed the suit under Section 9 of the Hindu Marriage Act for restitution of conjugal right. The said suit was resisted on the ground that the suit had been filed after much delay only to get over the order of the Magistrate under Section 125, Cr.P.C. directing payment of maintenance to the wife and minor daughter. It was also pleaded that the husband had treated the wife with cruelty and mental torture and as such, there was justification for the wife to live apart from the husband. 3. The trial Court dismissed the suit on the ground that the suit had been filed belatedly without any justifiable reason and it was also found that the wife had been treated with cruelty and as such, there was reasonable cause for the wife to live apart from the husband. The aforesaid decision of the trial Court was reversed by the lower appellate Court which decreed the suit for restitution of conjugal right. Hence, the present appeal. 4. At the time of admission of the appeal it was indicated that the points of law covered by paragraphs 3, 4 and 5 of the memorandum of appeal are to be considered. Ground No.3 of the memorandum of appeal is quoted hereunder : “3. For that the finding of the learned Court below that “I find no other legal bar not to grant the relief” is a mistake of fact and the learned Court below has lost sight of the fact that the cruelty has been inflicted on the appellant No. 1 by the respondent-plaintiff prior desertion, the appellant and even after that the respondent inflicted mental cruelty on the appel¬lant’s wife.” 5. Confining myself to the question raised in Ground No.3 I think the appeal is to be allowed. It appears that an earlier proceeding under Section 125, Cr.P.C. had been filed by the present appellant wherein the present respondent had taken the stand that the appellant was not his wife. It was further pleaded that the appellant was the wife of his deceased elder brother and the child was also of the deceased elder brother. It appears that an earlier proceeding under Section 125, Cr.P.C. had been filed by the present appellant wherein the present respondent had taken the stand that the appellant was not his wife. It was further pleaded that the appellant was the wife of his deceased elder brother and the child was also of the deceased elder brother. Of course, the aforesaid plea was not proved before the Magistrate in the pro¬ceeding under Section 125, Cr.P.C., and ultimately, the present respondent has accepted the fact that the present appellant is his wife. Raising such unfounded defence relating to the status of the present appellant as well as the status of minor child in the earlier proceeding clearly amounts to infliction of mental cruelty. As such, it can be said that the wife had enough justifica¬tion to live apart from the husband. 6. In view of such conclusion, it is unnecessary to consider other questions raised in this appeal and on the aforesaid finding the appeal is bound to succeed. Accordingly, the appeal is al¬lowed and the judgment and the decree of the lower appellate Court is set aside and the suit for restitution of conjugal right is dismissed. However, there will be no order as to costs. Appeal allowed.