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2006 DIGILAW 1357 (RAJ)

Kanku Bai v. Tulsi Ram

2006-04-26

R.P.VYAS

body2006
Judgment Rajesh Balia, J.-This appeal has been preferred by the appellant-wife against the order of Judge, Family Court, Udaipur passed on 25.07.2001 allowing the application moved by the respondent-husband for decree of restitution of conjugal rights. 2. The respondent-applicant had moved an application dated 31.05.1999 before the Family Court, Udaipur under Section 9 of the Hindu Marriage Act inter alia on the ground that appellant-wife was in the habit of wearing more and more ornaments and he also got ornaments of gold made for her but she did not stop making demands and he being not in position to acquire gold ornaments, she became angry and left her matrimonial home and stayed at her fathers home for about one year. The other reason of leaving house of applicant-husband by the appellant-wife is that her paternal home is also in the same village and for this reason she used to visit her paternal home again and again despite the objection by her husband-applicant. The another allegation was that father of the wife wants to give his daughter in "Nata" to another gentleman and does not want to send his daughter with him. With these allegations, he asserted that he wants to continue with marriage and asked for a decree of restitution of conjugal rights. 3. The wife denied allegations made in the application and asserted that husband was not giving her proper treatment and used to misbehave and beat her now and then which compelled her to leave her matrimonial home. She also alleged that husband has kept her Stridhan with him. 4. The husband examined himself as AW-1 and two other witnesses AW-2 Sawa and AW-3 Lalu Ram. The appellant-wife produced herself as NAW-1, NAW-2 Chandabai, NAW-3 Nakka Bai and NAW-4 Prakash in support of allegations about the ill-treatment by her husband. 5. The learned Judge, Family Court has allowed the application under Section 9 of Hindu Marriage Act. 6. Having perused the application and the material on record and considering the rival contentions of the learned Counsel for the parties, we are of the opinion that the Judgment under appeal cannot be sustained. The applicant in his own statement has not stated anything about the averments made in his application about the demand of gold ornaments by the wife inasmuch as in examination-in-chief , he only stated that he has not given beating to his wife. The applicant in his own statement has not stated anything about the averments made in his application about the demand of gold ornaments by the wife inasmuch as in examination-in-chief , he only stated that he has not given beating to his wife. In his examination in chief , he has not even stated that his wife is living at his fathers home and he ever tried to bring her back at his home. Even in his application, though he has made such assertion that he and his family members have visited the family of wife but she refused to come with him, however, nothing has been stated about this fact in examination in chief . He has also not denied about the pendency of application for maintenance filed by wife since before he moved an application under Section 9 of the Hindu Marriage Act. The application was of the husband in which he has levelled specific allegations about the reasons of leaving the matrimonial home by the wife, but about which he has stated nothing in his statement and the case pleaded by him has not been proved by him by his own statement or statement made by his witnesses. Apparently, the assertion made in the application under Section 9 has not been proved and on that basis, presumption cannot be drawn against the wife about her case pleaded in his defence. Moreover, apart from wife herself , NAW-2, Chandabai, mother of the appellant-wife, has supported the case of the wife that husband was giving beating to her time and again and even in cross-examination, she has made it clear that such beating was given in her presence also. The fact that the witness has not been able to state exact date, time and year when such beating has taken place, when admittedly, the parties are living for more than two years away from each other can hardly reflect the credibility of the witness about what she has stated about the treatment given to her daughter by her husband. Statements of NAW-3 and NAW-4 about ill-treatment by her husband were discarded only on the ground that the details of date, year and time have not been stated by these witnesses. 7. Statements of NAW-3 and NAW-4 about ill-treatment by her husband were discarded only on the ground that the details of date, year and time have not been stated by these witnesses. 7. We are unable to sustain this conclusion arrived at by learned Judge, Family Court that merely because the witnesses who are illiterate villagers are unable to state the date, time and year of beating given at the household which they themselves witnessed. Apparently, it appears to be a case where the husband has taken recourse to application under Section 9 of the Hindu Marriage Act for the purpose of defeating the wifes claim for maintenance and for laying down a ground for future dissolution of marriage. Apparently, the forum of matrimonial case cannot be used as a vehicle for such pranks. 8. Accordingly, the appeal is allowed. The Judgment under appeal is set aside. The application under Section 9 of the Hindu Marriage Act field by husband is rejected with costs quantified at Rs. 5000/-.