Research › Search › Judgment

Madhya Pradesh High Court · body

2003 DIGILAW 906 (MP)

Chameli Bai v. Kanhaiyalal Jharia

2003-07-28

A.K.AWASTHY

body2003
JUDGMENT The appellant/defendant has filed this appeal under section 28 of the Hindu Marriage Act against the judgment and decree dated 20.2.2002 passed by IInd Additional District Judge, Mandla, in Civil Suit No. 17-A/2000 whereby the petition for restitution of conjugal rights under section 9 of the Hindu Marriage Act was allowed. The admitted facts of the case are that the marriage in between the appellant and the respondent was solemnised in the month of April, 1990 at village Devgaon District Mandla according to Hindu rites and customs and they are having two children from their wed-lock. The case of the petitioner is that the defendant/wife was in habit of leaving the matrimonial house without consent of the petitioner and the defendant has left the matrimonial house at the time of birth of second child. That she has also taken all belongings to her maternal house and when the petitioner went to bring her back then she has refused to return and live with the petitioner. The petitioner has pleaded that his wife is living separately without any reason and as such the decree be passed for restitution of the conjugal rights. The defendant has denied that she was in habit of leaving the matrimonial house and it is pleaded that her husband used to torture her for demand of dowry and she was forced to leave the matrimonial house. The defendant has further denied that the petitioner had made attempt to put fire after pouring the kerosene oil on her. That the defendant has filed the case under section 125 of CrPC for maintenance of herself and her two children and the petitioner has filed the petition for restitution of the conjugal rights in order to deprive the defendant and her children from getting the maintenance. It is further pleaded that the petitioner is living with any other lady and as such it is not possible for the defendant to live with her husband. Learned trial Court, after framing the issues, has examined Kanhaiyalal Jhariya (AW1), Gullulal (A.W. 2), Hajarilal (A.W. 3) and from the opposite side Smt. Manwati Bai (NAW 1) and the defendant Chameli Bai (NA W 2). Learned trial Court has allowed the petition holding, that the defendant is living separately from the petitioner without any reasonable cause. Learned trial Court, after framing the issues, has examined Kanhaiyalal Jhariya (AW1), Gullulal (A.W. 2), Hajarilal (A.W. 3) and from the opposite side Smt. Manwati Bai (NAW 1) and the defendant Chameli Bai (NA W 2). Learned trial Court has allowed the petition holding, that the defendant is living separately from the petitioner without any reasonable cause. The appellant has assailed the decree on the ground that the learned trial Court has not properly appreciated the evidence regarding the cruelty by the respondent and as such the judgment be reversed and the petition be dismissed. Kanhaiyalal (AW1) has stated that in the year 1991 his wife has left the matrimonial house against his wishes and he went along with Hazarilal, Suresh Kumar and others to village Ramnagar to bring his wife back but she has refused to come back. It is further stated that he has sent notice Ex. P-1 dated 1.11.1991 and notice Ex. P-2 dated 9. 12.1991 to the defendant for coming back to live in the matrimonial house and thereafter the Panchayat was held wherein the defendant has admitted that she has levelled the false charges against her husband and after signing the agreement Ex. P-3 she lived with the petitioner for about one and half year and thereafter left the matrimonial house after taking her jwellary and belongings. Kanhaiyalal (A.W. 1) has further stated that the report in the police station was lodged by him against his wife that she has stolen the ornaments and these reports are Ex. P-4 and Ex. P-5. The defendant has stated on oath that her husband is not interested in keeping her in matrimonial house and she was in habit of beating her after consuming the liquor. Kanhaiyalal (A.W. 1) has admitted in para 12 of his cross-examination that the suit was filed by him in the Court of District Judge, Mandla for judicial separation from his wife. Learned counsel for the respondent has failed to convince the Court that why the petition for judicial separation was filed by the respondent and why after dismissal of the petition for judicial separation, this suit was filed for restitution of conjugal rights. Learned counsel for the respondent has failed to convince the Court that why the petition for judicial separation was filed by the respondent and why after dismissal of the petition for judicial separation, this suit was filed for restitution of conjugal rights. From the perusal of the order dated 19.12.1998 passed in Criminal Case No. 106/98 by the Judicial Magistrate First Class, Mandla, it is clear that the respondent/husband was directed to pay the maintenance to the appellant and her two children and it was held therein that the petitioner has ousted his wife after physically assaulting her. Consequently, the allegations of the respondent/wife appears to be true that the petitioner has filed the petition under section 9 of the Hindu Marriage Act in order to deprive her and the children from the amount of maintenance ordered in the case filed under section 125, CrPC. The appellant has admitted that the First Information Report Ex. P-4 and Ex. P-5 was lodged by him against his wife in the police Station alleging that his wife has committed the theft of the ornaments from his house. The police has not taken any action in the FIR Ex. P-4 and EX.P-5. The respondent has not led any evidence to show that the wife has stolen the ornaments and ran away. The appellant/wife is living separately with two children and there is no ground pleaded to prove by the respondent that why she has left the matrimonial house and not living with the respondent. In the aforesaid circumstances, I agree with the findings of the learned Magistrate in his order dated 15.12.1998 that the wife was ill-treated by the respondent and as such she is living separately from him. The fact that the respondent has filed the petition for judicial separation and he had lodged two First Information Reports on the baseless charge of theft, also corroborates the findings that the respondent is actually not prepared and willing to keep his wife in the matrimonial house. The learned trial Court has not considered the FIR Ex. P-4 and Ex. P-5 and the petition of the judicial separation filed by the respondent and the order of the Judicial Magistrate First Class under section 125 of CrPC in true prospective and he has erred in holding that the decree of restitution of conjugal rights should be passed. The learned trial Court has not considered the FIR Ex. P-4 and Ex. P-5 and the petition of the judicial separation filed by the respondent and the order of the Judicial Magistrate First Class under section 125 of CrPC in true prospective and he has erred in holding that the decree of restitution of conjugal rights should be passed. The respondent's acts and conducts against his wife were very unjust and reprehensible and he should not be allowed to take the advantage of his own wrong and as such he was not entitled to get the relief in view of clear bar of section 23(1) of Hindu Marriage Act. Consequently, the defendant should not be asked to co-habit with her husband and, in the facts and circumstances of the case, the order of restitution of conjugal rights is not sustainable. The appeal is, therefore, allowed. The impugned judgment and decree is hereby set aside. The petition filed by the respondent is dismissed. Parties to bear their own costs of the appeal.