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2003 DIGILAW 697 (MP)

Ram Niwas Singh Rathore v. Sumitra

2003-05-09

A.K.AWASTHY

body2003
Judgment ( 1. ) THE appellant/respondent has filed the appeal under Section 28 of the Hindu Marriage Act against the judgment and decree dated 20. 11. 1996 passed in Civil Suit No. 1-A/91 by the District Judge, Shahdol wherein the petition of the respondent for restitution of conjugal rights under Section 9 of the Hindu Marriage Act was allowed and the counter claim of the appellant for divorce on the ground of adultery was dismissed. ( 2. ) THE admitted facts of the case are that the marriage between the parties was solemnised at Village Pathra, Distt. Shahdol according to the Hindu rites and customs and at the time of filing of the petition in the year 1991 the respondent/ wife was living separately in the house of her parents. ( 3. ) THE respondent/wife filed the application for restitution of conjugal rights under Section 9 of the Hindu Marriage Act on the ground that the appellant/ husband used to physically assault her and treated her with cruelty for the demand of the dowry. That the appellant has refused to get her within her matrimonial house although the respondent and his family members went to persuade the appellant to allow the respondent to live with the appellant. The respondent has prayed that the appellant be directed to resume the conjugal rights. ( 4. ) THE appellant has denied that he used to beat or ill-treat his wife and that the dowry was demanded by him. It is also denied that the respondent and his family members came to his house to resume the matrimonial relation. The appellant has pleaded that the respondent/wife has left the matrimonial house in December, 1987 and on account of her illicit relation with other persons she gave birth in the month of June, 1990. That the respondent is a lady of bad character and she is leading adulterous life. The appellant/husband has prayed that the decree of dissolution of marriage be passed and the petition filed by the respondent/wife for restitution of conjugal rights be dismissed. ( 5. ) THE learned Trial Court has examined respondent/wife Sumitra Bai and her witness Parwate (P. W. 2) and the appellant husband examined himself, Mahendra Singh (NAW 2) and Ajay Singh (NAW 3 ). ( 5. ) THE learned Trial Court has examined respondent/wife Sumitra Bai and her witness Parwate (P. W. 2) and the appellant husband examined himself, Mahendra Singh (NAW 2) and Ajay Singh (NAW 3 ). Learned Trial Court has held that the appellant/husband was keeping his wife separately without any reasonable and probable cause and the appellant made the baseless allegations against his wife of having illicit sexual relation. Learned Trial Court has allowed the petition for restitution of the conjugal rights and the prayer of the appellant/ husband for divorce was rejected. ( 6. ) THE appellant has assailed the impugned judgment and decree on the ground that entire findings of the learned Trial Court is based on the letter Ex. P/ 1 written by the appellant and the learned Trial Court has not properly assessed the oral and circumstantial evidence of the case. That the decree of restitution of conjugal rights be set aside and the petition of the appellant for divorce be allowed. ( 7. ) SUMITRA Bai (P. W. 1) has stated that her husband was in habit of beating her and he used to say that T. V. and fan was not given in the dowry. Sumitra Bai (P. W. 1) has further stated that her husband has turned her out from his house and the letter Ex. P/1 was sent by her husband to her. Parwate (P. W. 2) has stated that the appellant forced his wife to leave the matrimonial house and the appellant used to beat his wife in order to have the T. V. , fan, etc. in the dowry. Parwate (P. W. 2) has further stated that the appellant used to say if his wife Sumitra Bai will be sent back to live with him then he will cause her death by pouring on her the kerosene oil. The appellant Ram Niwas Singh (NAW 1) in para 6 of his cross-examination has admitted that letter Ex. P/1 was written by him and it was sent to the parental house of Sumitra Bai. In letter Ex. P/1 the appellant has admitted that he hates the ladies and he wants to renounce the world. From the text of Ex. P/1 it is clear that appellant wanted that the respondent/wife should not live with him. Letter Ex. P/1 was sent by the appellant after the respondent left the matrimonial house. In letter Ex. P/1 the appellant has admitted that he hates the ladies and he wants to renounce the world. From the text of Ex. P/1 it is clear that appellant wanted that the respondent/wife should not live with him. Letter Ex. P/1 was sent by the appellant after the respondent left the matrimonial house. In this letter Ex. P/1 the appellant had not made any allegation that the respondent/wife gave the birth to the illegitimate child or that the respondent is living the lacherous life. Consequently, from the statement of Sumitra Bai (P. W. 1) it is clear that the appellant was denying the respondent/wife to her right to lead the marital life without any reasonable and probable cause. ( 8. ) THE appellant has examined Mahendra Singh (NAW 2) and Ajay Singh (NAW 3 ). Mahendra Singh (NAW 2 ) and Ajay Singh (NAW 3) have not stated anything about the wrong relation of Sumitra Bai with any person and neither they have stated that her daughter was an illegitimate child. The appellant has not given the reply of the notice Ex. P/2 which sent to him by the respondent/ wife. In this notice Ex. P/2 the respondent/ wife made the allegations against the appellant that he beats his wife for dowry and the report in the police be lodged against him. The appellant has not complained before the Punchayat or any authority about the fact that his wife is of loose character and leading adulterous life arid she has given the birth to the illegitimate child. Consequently, the learned Trial Court has rightly held that the appellant has made the baseless allegations against the chastity of his wife. ( 9. ) LEARNED Counsel for the appellant has alleged that the respondent/wife is living separately from her husband from the year 1991 and as such the marriage be dissolved by the decree of divorce for non-compliance of the impugned decree dated 28. 11. 1996 which was for restitution of the conjugal rights. The appellant/ husband is guilty of matrimonial misconduct of making the reckless and unfounded allegations, against the respondent/wife that she was leading unchaste life and had an illegitimate daughter. It is held that the appellant was responsible for ill-treating his wife and turned her out from the matrimonial house. 11. 1996 which was for restitution of the conjugal rights. The appellant/ husband is guilty of matrimonial misconduct of making the reckless and unfounded allegations, against the respondent/wife that she was leading unchaste life and had an illegitimate daughter. It is held that the appellant was responsible for ill-treating his wife and turned her out from the matrimonial house. Consequently, by virtue of Section 23 (1) (a) of Hindu Marriage Act the appellant is not entitled to get the relief of divorce on the ground that his wife is living away from him from 1991 and that too even after passing of the decree of restitution of the conjugal rights. The appellant cannot take the advantage of his own wrong. Therefore, it is, held that the judgment and decree passed by the learned Trial Court is in accordance with the evidence produced in the case and the law applicable therein. Appellant has without reasonable cause denied his wife the marital company. As such decree of restitution of conjugal right was rightly passed against the appellant. ( 10. ) THE appeal is without any merit and it is hereby dismissed. Parties to bear their Own costs on appeal.