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2001 DIGILAW 770 (PNJ)

Usha Rani v. Lachhman Dass

2001-07-26

ADARSH KUMAR GOEL

body2001
ORDER Adarsh Kumar Goel, J. - This appeal has been filed by the appellant-wife against the judgment and decree dated 28.10.1993 rendered by Subordinate Judge Ist Class, Abohar granting a decree for restitution of conjugal rights in favour of the respondent-husband. 2. Marriage between the parties took place on 13.4.1989. A female child was born out of the wedlock on 13.1.1990. The husband filed a petition giving rise to this appeal on 26.2.1991 alleging, inter alia, that the wife has withdrawn from his society w.e.f. 13.4.1990; she was serving as Clerk in the Punjab State Electricity board at Fazilka while the respondent was living at Abohar and in spite of her promise to get herself transferred to Abohar, she is not willing for the said transfer. The wife contested the petition. It was stated that the husband had no affection or love for the wife and the daughter and was not willing to keep her on wifes inability to comply with the demand for money and that she was willing to get herself transferred to Abohar and live with the husband. 3. Trial court granted a decree observing that the plea of the wife in her statement as RW-1 was inconsistent with the plea taken in Exhibit AW4/A i.e. the reply to the notice sent by the husband wherein she stated that she was living at Fazilka with her mother as she was in the family way. Aggrieved by the said judgment, this appeal has been preferred. 4. The matter was referred to the Lok Adalat under section 20 of the Legal Services Authorities Act. The Lok Adalat after observing that there was no scope for compromise, sent the matter back to this Court for decision on merits. 5. Mr. Sandip Khungar, learned counsel for the appellant submitted that the approach of the trial court is erroneous and in fact there was no contradiction in the reply to the notice and the reply to the petition. He further submitted that the petition of the husband was not bona fide as the husband was not keen for cohabitation, but wanted a decree for restitution merely to create a ground for the divorce. He further submitted that the petition of the husband was not bona fide as the husband was not keen for cohabitation, but wanted a decree for restitution merely to create a ground for the divorce. He re-iterated that the wife was still ready and willing to live with the husband, but the husband was not willing to keep the wife with him and in the circumstances of the case, the inference that the wife has left away without sufficient cause was not warranted. Mr. A.K. Chopra, learned counsel for the respondent submitted that the wife was not willing to live with the husband and the trial court was justified in drawing an inference that the wife had withdrawn from the society of her husband without any sufficient cause. He further submitted that the wife got the order of transfer cancelled by making an application on 20.7.1989 and the order of cancellation was passed on 28.8.1989 and that she contradicted herself when she stated that she was not living at Abohar because the husband was not treating her with love and affection as against her earlier stand that she was living with the mother on account of pRegulation ncy. He further submitted that the wife has stated that she was willing to join the husband, if the husband pays some money for the child and gives love and affection to her and the child. He further submitted that no sufficient cause has been shown for living separately. 6. I find force in the contention of the learned counsel for the appellant. I do not find any contradiction in the stand taken in the reply to the notice and the reply to the petition. I am satisfied that there was a sufficient cause for the wife to live separately as pleaded by her. There was no contradiction in her saying that initially she had to live with the mother during her pRegulation ncy and later on her saying that she was living away because of the attitude of the husband. Both the statements refer to two different situations and different points of time. Mr. Chopra has also read over a portion of the written statement in this regard. After reading the written statement as a whole, I find that the wife has not contradicted herself in any manner. The approach adopted by the trial court is clearly erroneous. Both the statements refer to two different situations and different points of time. Mr. Chopra has also read over a portion of the written statement in this regard. After reading the written statement as a whole, I find that the wife has not contradicted herself in any manner. The approach adopted by the trial court is clearly erroneous. I find that the husband has not cared to look after the child nor there is anything to indicate that he had sought custody of the child and in the facts and circumstances of the case, the only inference that can be drawn is that after neglecting the wife and the child, the husband is trying to take advantage of his own wrong by seeking restitution of conjugal rights without any intention to actually resume cohabitation. 7. For the reasons aforesaid, this appeal is allowed. The judgment and the husbands petition for restitution of conjugal rights is dismissed with costs which are quantified at Rs. 10,000/-. Appeal allowed.