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2001 DIGILAW 709 (PNJ)

Swaran Kaur v. Gurdev Singh

2001-07-19

ADARSH KUMAR GOEL

body2001
JudgmentJudgment Adarsh Kumar Goel, J. 1. This appeal has been preferred by the appellant-wife against the judgment and decree dated 9.3.1994 granted by Sub-Judge 1st Class, Balachaur, exercising the powers of District Judge, Hoshiarpur. 2. The marriage between the parties took place about somewhere in the year 1984 and out of the wedlock, two daughters were born who were 8-1/2 and 4 years respectively at the time of judgment of trial court. The respondent-husband filed petition for restitution of conjugal rights on 13.5.1991 alleging that the appellant-wife was quarrelsome and does not want to live in joint family and in August, 1987 she left the matrimonial home and refused to return back. 3. The appellant-wife appeared and contested the petition and stated that the husband filed petition for restitution as counter blast to her application under Section 125 of the Code of Criminal Procedure filed on 16.4.1991 and that she was turned out of the matrimonial home against her wishes and was not allowed to take her daughters with her. It was further stated that she was ill-treated on account of failure to give birth to a male child. The appellant-wife offered to live with the respondent-husband and stated that the real motive of the husband in seeking petition for restitution was to finally get the divorce on the basis of the decree for restitution of conjugal rights. 4. The trial Court observed that the husband has treated the wife well, but the wife wanted divorced on the receipt of Rs. One lac as compensation. With these observations, the trial Court granted decree for the grant of restitution of conjugal rights. Aggrieved thereby the wife has preferred this appeal. 5. The matter was referred to the Lok-Adalat under Section 20 of the Legal Services Authority Act, 1987. Finding that there was no possibility of compromise, the matter was referred back to this Court for decision on merits. 6. I have perused the record and considered the matter. 7. I find that the approach of the trial Court is erroneous. The statement of the wife regarding divorce is in the context of negotiation of divorce by mutual consent. Her stand in the pleadings and evidence is that she was turned out for inability to give birth to a male child. While deciding the case on merits, her stand on divorce by mutual consent could not be taken into account. The statement of the wife regarding divorce is in the context of negotiation of divorce by mutual consent. Her stand in the pleadings and evidence is that she was turned out for inability to give birth to a male child. While deciding the case on merits, her stand on divorce by mutual consent could not be taken into account. The trial Court is not justified in observing that the husband has treated the appellant-wife well. There are allegations and counter allegations and there is no reason to accept husbands version duly rebutted by wife. I am, therefore, unable to agree with the approach adopted by the trial Court. I, therefore, set aside the finding of the trial Court that the appellant-wife had withdrawn from the society of the respondent-husband without reasonable cause. 8. In view of the above, I allow this appeal, set aside the judgment and decree for restitution of conjugal rights granted by the trial Court and dismiss the petition filed by the respondent-husband. There is no order as to costs.