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2008 DIGILAW 1478 (RAJ)

Jeewan Prakash v. Smt. Hemlata Kumawat

2008-05-28

C.M.TOTLA, PRAKASH TATIA

body2008
JUDGMENT 1. - The appellant-applicant husband of the respondent-non-applicant is aggrieved against the judgment and decree of the trial court dated 16.2.2005 passed by the learned Judge, Family Court, Udaipur in Civil Misc. Case No.80/2002 filed under Section 9 of the Hindu Marriage Act. The trial court dismissed the appellant's petition under Section 9 of the Hindu Marriage Act vide impugned order. Hence this appeal. 2. Brief facts of the case are that the marriage of the appellant and respondent took place on 6.7.1988. They have two daughters who were of the age of 12 years and 6 years when the present petition under Section 9 of of the Hindu Marriage Act was filed on 15.2.2002. The appellant and respondent were living in the city of Udaipur but according to the appellant, the respondent left the appellant on 3.7.1992 and went to the town Chittorgarh where her parents were living. The respondent also took their daughter Miss Maya along with her. Inspite of several efforts, the respondent did not come to appellant's house. Then the respondent submitted divorce petition under Section 13 of the Hindu Marriage Act in the court of Additional District Judge No.1, Chittorgarh on 13.4.1993. The appellant submitted petition under Section 9 of the Hindu Marriage Act in the court of Additional District Judge, Chittorgarh which was case No.90/94. The respondent submitted petition under Section 125, Cr.P.C. also. Ultimately, there was settlement between the parties on 22.7.1995 and the respondent started living with the appellant. In view of the settlement, the appellant withdrew his petition under Section 9 of the Hindu Marriage Act (No.90/94) and respondent withdrawn her petition under Section 13 of the Hindu Marriage Act. However, according to the appellant, the respondent used to say that she do not want to live with the appellant and she used to tell the appellant that the appellant is old person and she does not like him. Thereafter, the respondent lodged a criminal case under Section 498A, IPC in the police station. In the said case, all the accused including the appellant were acquitted. Again there was settlement between the appellant and the respondent and the cases from the court at Chittorgarh withdrawn. After settlement of all disputes, the respondent went to meet with her mother and took her daughter Miss Maya with her inspite of protest by the appellant. In the said case, all the accused including the appellant were acquitted. Again there was settlement between the appellant and the respondent and the cases from the court at Chittorgarh withdrawn. After settlement of all disputes, the respondent went to meet with her mother and took her daughter Miss Maya with her inspite of protest by the appellant. Thereafter, she did not turn up and in his parents' house, she gave birth to second daughter on 16.6.1996. Thereafter, also a petition under Section 125, Cr.P.C. was filed wherein the court awarded the maintenance of Rs.500/- per month to the respondent and Rs.300/- per month for each of the daughter against the appellant. The appellant thereafter gave a notice to the respondent and when she did not come back, the appellant gave another notice through his advocate on 23.3.2002 and thereafter filed this petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. 3. The respondent admitted that she is wife of the appellant and gave birth to two daughters, Maya and Kavita. She stated that she was turned out by the appellant and his parents after giving beating on 3.7.1992 and she has no option but to live with her parents. She admitted the filing of the divorce petition by her and filing of the petition under Section 9 of the Hindu Marriage Act by the appellant as well as her filing of petition under Section 125, Cr.P.C. It is stated that the petitions under Sections 9 and 13 of the Hindu Marriage Act were withdrawn by both the parties but denied the allegations levelled against her. She stated that she lodged criminal case against the appellant and his family members under Section 498A, IPC at the police station on 18.3.1996 but the appellant, by his influence, persuaded to change the statement because of which he was acquitted by the court. She stated that in the cases which were pending in the Chittorgarh, the appellant gave false assurances and got the cases withdrawn. She stated that she has every apprehension that in case she will live with the appellant, she will be killed. 4. The issue was framed and the appellant gave his statement as AW-1 and produced witnesses AW-2 Moti Lal, AW-3 Radhy Shyam and AW-4 Mohan Bai. In rebuttal, respondent gave her statement as NAW-1 and produced her witness NAW-2 Durgak only. 4. The issue was framed and the appellant gave his statement as AW-1 and produced witnesses AW-2 Moti Lal, AW-3 Radhy Shyam and AW-4 Mohan Bai. In rebuttal, respondent gave her statement as NAW-1 and produced her witness NAW-2 Durgak only. The trial court, after considering evidence of the parties, held that the appellant and appellant's father levelled absolutely serious false allegation of bad character of the respondent and there is allegation of respondent that the appellant and his family members tried to burn her and the court found that there are scars of burn on the face of the respondent and there is oral evidence of the respondent that she was not only cruelly treated but there is a danger to her life in living with the appellant. The trial court also held that there is no explanation why the respondent, who even after dispute, started living with the appellant, left the appellant. In view of the above, the trial court held that the appellant failed to prove that the respondent is not discharging matrimonial obligations without any just cause. 5. The learned counsel for the appellant tried to submit that there were some disputes between the parties and the respondent herself sought divorce and submitted divorce petition before the court of Additional District Judge No.1, Chittorgarh and that shows that the respondent had no intention to live with the appellant. Contrary to it, the appellant submitted petition under Section 9 of the Hindu Marriage Act and also persuaded respondent to live with the appellant. The appellant succeeded in his efforts and started living happily with his wife but the respondent was not happy because of the age of the appellant and because of the reason that she had no intention to live with the appellant. It is also submitted that she lodged a false criminal case against him and his family members wherein the appellant and his family members were acquitted. In view of the above, the trial court committed serious error in dismissing the petition under Section 9 of the Hindu Marriage Act. 6. It is also submitted that she lodged a false criminal case against him and his family members wherein the appellant and his family members were acquitted. In view of the above, the trial court committed serious error in dismissing the petition under Section 9 of the Hindu Marriage Act. 6. The learned counsel for the respondent submitted that it is clear from the facts mentioned in the pleadings of the parties that the appellant and respondent cannot live together and the appellant gave bad treatment to the respondent and tortured her and tried to burn her and inspite of serious dispute, the respondent went to the house of the appellant and because of torture of the respondent, she cannot live with the appellant. It is submitted that the trial court appreciated the evidence and the surrounding circumstances and thereafter dismissed the petition of the appellant and has not committed any illegality. 7. We considered the submissions of the learned counsel for the parties and perused the record. It is not in dispute that since 1992, the appellant and respondent are not living together and their marriage took place in the year 1988. Out of wedlock, there are two daughters. The daughter Maya was of the age of 12 years in the year 2002 and another daughter Kavita was of the age of 6-7 years. There were litigations between the parties. In the statement before the trial court, the appellant himself admitted that respondent Hem Lata suffered burn injury on her face and it was because of burning by kerosene. In cross-examination, he denied that he tried to burn respondent Hem Lata. The appellant produced his father in the witness-box who is AW-2-Moti Lal. In cross-examination appellant's father Moti Lal stated that second daughter of respondent is not of appellant but of one businessman. He denied that he or his family members tried to kill respondent by burning. He stated that in case the respondent herself wanted to die by burning herself then how they can be responsible. AW-3 Radhey Shyam is relative of the appellant and stated that dispute between the appellant and respondent continued and respondent started living at Chittorgarh. In cross-examination, he stated that he do not know whether the appellant turned out the respondent from the house or not. AW-3 Radhey Shyam is relative of the appellant and stated that dispute between the appellant and respondent continued and respondent started living at Chittorgarh. In cross-examination, he stated that he do not know whether the appellant turned out the respondent from the house or not. The witness AW-4 Mohan Bai, whose maternal uncle's son is appellant, in cross-examination stated that she do not know whether the appellant and his family members were beating the respondent or not. She denied that the appellant tried to burn the respondent. 8. The respondent in her statement, stated that she was burnt by the appellant and she has scars of burn on her face. She stated that I have no faith in the appellant and, therefore, she cannot live with him. Her statement was supported by her sister NAW-2 Durga. 9. In view of the totality of the facts of the case, when there were so many litigations between the parties and there are serious allegations against each other, to the extent of immorality and counter allegation of burning the respondent by the appellant, then in totality of the facts and circumstances of the case, if the trial court has refused to grant decree for restitution of conjugal rights, then the trial court has not committed any illegality. The appellant failed to prove that there was no just cause for the respondent to live separate from the appellant. 10. Therefore, we do not find any merit in this appeal and the same is hereby dismissed. While admitting this appeal, the appellant was directed to deposit Rs.20,000/- as provisional cost to be incurred by the respondent for contesting this appeal. The learned counsel for the appellant submitted that the appellant deposited said amount of Rs.20,000/- which is lying in the court. Since the appeal of the appellant has failed, but looking to the facts of the case we direct that out of Rs.20,000/-, amount of Rs.10,000/- may be paid to the appellant and Rs.10,000/- may be paid to the respondent.Appeal dismissed. *******