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2009 DIGILAW 1368 (PNJ)

Saroj Bala v. Pardeep Kumar Dhingra

2009-08-11

VINOD K.SHARMA

body2009
JudgmentJudgment Vinod K.Sharma, J. 1. The appellant wife by way of this appeal has challenged the judgment and decree dated 31.8.2001 passed by learned Additional Civil Judge(Sr. Divn.) Batala vide which petition filed by the respondent-husband under Section 9 of the Hindu Marriage Act, 1955 for the restitution of conjugal rights, was ordered to be decreed. The respondent- husband filed petition on the pleadings that the marriage between the parties was solemnized on 22.1.1991. After marriage, the parties cohabited as husband and wife and out of this wedlock, a son namely Sonu was born 12.12.1991 at Fatehgarh Churian. It was the case of the respondent-husband that the appellant-wife without reasonable excuse had withdrawn from society of the respondent and she left the company of the respondent when she was pregnant and had gone to the house of her mother and brother for the delivery of a child. It was also pleaded that at the time of leaving of the house, the appellant-wife took away all the valuable jewellery and costly clothes and thereafter, she did not turn up. It was pleaded that the petition was not presented in collusion with the respondent and that there has not been any unnecessary or improper delay in filing this petition. 2. Petition under Section 125 Cr.P.C. was also filed by the appellant-wife, which was subsequently, allowed against the respondent husband. 3. The appellant had also filed a suit for injunction restraining the respondent-husband from remarrying. The stand of the respondent was that this was unnecessary litigation as he had no intention to re many. 4. The application was contested and it was pleaded therein that there is inordinate delay of about eight years in instituting the petition under Section 9 of the Hindu Marriage Act, 1955 for the restitution of conjugal rights. 5. The appellant also took a stand that she had not left the matrimonial home but was in fact, turned out of the house on demand of dowry. 6. She also pleaded that she had been unnecessary harassed by inhuman behaviour by the respondent and his family members. 7. 5. The appellant also took a stand that she had not left the matrimonial home but was in fact, turned out of the house on demand of dowry. 6. She also pleaded that she had been unnecessary harassed by inhuman behaviour by the respondent and his family members. 7. It was also stand of the appellant-wife that it was only in the last week of March, 1992 that father of the husband had come to see the appellant and her son, Sonu at Fatehgarh Churian and expressed his desire to take the appellant and Sonu at house at Batala but mother of the appellant wife was unwilling to send the appellant and her son with the father of the respondent-husband, due to the cruel behaviour of the respondent husband, his parents and sister towards the appellant-wife. 8. Father-in-law of the appellant assured her mother and brothers in the presence of respectable persons from Fatehgarh Churian that in future they will not beat the appellant or give her any cause of complaint. 9. She was therefore, sent alongwith her son and father-in-law. However, after 3-4 days of their arrival in the matrimonial home, she was again tortured and taunted for not bringing valuable clothes and gold ornaments and a Hero Honda Motor cycle on account of birth of Sonu. She alleged that they again started beating her and were not providing her food. 10. The demand of Rs.1 lac was also alleged. It was case set up in the year 1992. She was turned out of the house after having been given beatings by the respondent and his family. 11. From the pleadings of the parties, the learned court below was pleased to frame the following issues on 18.2.2000 :- "1. Whether the respondent is having sufficient ground to live separately ? OPR. 2. Relief." 12. As the onus of issue was placed on the appellant, she got examined herself and her witness, thereafter, evidence was closed by order of the court. The husband-respondent appeared as his own witness and led no other evidence. Learned court below decided issue No. 1 in favour of the husband-respondent for the reasons that the appellant-wife, had failed to produce any other evidence except her own statement to support her allegations of having turned out of the matrimonial home due to the harassment by the respondent-husband. 13. Learned court below decided issue No. 1 in favour of the husband-respondent for the reasons that the appellant-wife, had failed to produce any other evidence except her own statement to support her allegations of having turned out of the matrimonial home due to the harassment by the respondent-husband. 13. As regards plea of delay was concerned, the learned court below held that this question was not necessary. In view of the finding on Issue No.1, decree was passed in favour of the respondent. 14. Mr. D.R. Mahajan Advocate appearing for the appellant has challenged the decree firstly on the ground that order closing evidence of the appellant was not justified in law, as he got herself examined on 10.4.2001 and the evidence was or- dered to be closed by the learned court on 18.4.2001 without giving her further opportunity to lead evidence. 15. However, this plea of the appellant deserves to be noticed to be rejected. The zimni orders passed show that the appellant availed as many as eight effective opportunities to lead evidence but she failed to produce any evidence, in spite of availing two last opportunities. 16. Learned counsel for the appellant also con- tended that the judgment and decree cannot be sustained as admittedly, the petition was filed about more than seven years after she was turn out of the house, though it is claimed by the re- spondent that she has left the house of her own. However, it is not in dispute that the petition was filed after more than seven years of her leaving the matrimonial home. Section 23(1) of the Hindu Marriage Act, reads as under :- "23(1) If any proceedings under this Act, . However, it is not in dispute that the petition was filed after more than seven years of her leaving the matrimonial home. Section 23(1) of the Hindu Marriage Act, reads as under :- "23(1) If any proceedings under this Act, . whether defended or not, if the court is satis- fied that :- (a) any of the grounds for granting relief exists and the petitioner is not in any way taking advantage of his or her own wrong or dis- ability for the purpose of such relief, and (b) where the ground of the petition is the ground specified in clause (f) of sub-section (1) of section 10, or in clause (i) of sub sec- tion (1) of section 13, the petitioner has not in any manner be accessory to or conn ived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner con- doned the cruelty, and (c) the petition is not presented or prosecuted in collusion with the respondent, and (d) there has not been any unnecessary or im- proper delay in instituting the proceedings, and (e) there is no other legal ground why relief should not be granted, then, and in such a case, but not otherwise, the court shall de- cree such relief accordingly." 17. This Court in the case of JagtarSingh v. Smt. Hardip Kaur alias Gurnam Kaur, 1966 Current Law Journal 825 (FB), has been pleased to laid down as under :- . . " I am surprised that the conduct of the peti- tioner-appellant having declined to pay the litigation expenses and the maintenance al- lowance fixed by the Court under section 24 of the Act in the previous proceedings has been used by the trial Court to the advantage of the petitioner to repel the bar of inordi- nate delay. The Court below should have held that on account of the specific provi- sions of clause (a) of sub-section (1) of Sec- tion 23 of the Act the petitioner could not be allowed to take advantage of his own wrong or disability for the purpose of obtaining re- lief which was otherwise not available to him because of the operation of clause (d) of that sub section. Both the grounds on which the trial Court has declined to dismiss the petition under Section 23(1) (d) of the Act are, therefore, erroneous. The learned coun- sel for the appellant tried to refer to the evi- dence to show that he had gone to the house of the respondents parents-Sijgn some time before filing the petition and, therefore, hav- ing failed in that attempt he was not guilty of any laches in filing the present petition. This is an astounding argument. If this plea can be al lowed to hold the field a petitioner, who might have been guilty of any amount of laches, could avoid the bar of inordinate de- lay by merely claiming the relief from the opposite party a few days before going to Court. On the facts and circumstances of the case, I, therefore, hold that the finding of the Court below on the plea of delay is liable to be reversed and the petition of the appellant under Section 9 of the Act is liable to dismissal on the additional ground that the appellant was guilty of unnecessary and improper delay in filing the same." 18. Honble Patna High Court in the case of Shanti Devi v. Ratnesh Chandra Roukar and others, AIR 1969 Patna 27 has also been pleased to lay down, that an application for restitution of conjugal rights by the husband, on account of withdrawal by the wife from his society, without any satisfactory explanation for inordinate delay, is not competent and the decree passed is not sustainable in law. 19. earned counsel for the respondent husband however, has supported the judgment and decree passed by the learned court below, on the plea that delay stood explained as the respondent-husband appellant was taking steps to bring back the wife, but she refused to join his company. 20. The respondent did not lead any evidence in support of plea that steps were taken by him to reconcile the matter and call appellant to matrimonial home 21. Rather petition under Section 125 Cr.P.C. was filed by the appellant for her maintenance because of neglect by the respondent husband, in which order was passed in her favour. 22. In view of the judgments referred to above, it has to be held that petition filed by the respondent-husband after delay of almost seven years of her leaving matrimonial home, was not competent. 23. 22. In view of the judgments referred to above, it has to be held that petition filed by the respondent-husband after delay of almost seven years of her leaving matrimonial home, was not competent. 23. In view of the finding recorded above there is no necessity to go into the contention of learned counsel for the appellant that the appellant was fully justified not to join matrimonial home for torture and harassment on account of demand of dowry for which the appellant had placed reliance on the judgment of this Court in case of Raj Kumar v. Harish Chander, 1985(1) HLR 74, wherein this Court was pleased to lay down that statement of wife that she was harassed for the sake of dowry can be accepted by the Court to dismiss the application moved under Section 9 of the Hindu Marriage Act, 1955 . For the reasons stated, this appeal is allowed and judgment and decree dated 31.8.2001 passed by learned Additional Civil Judge (Sr.Divn.) Batala is set aside, and the application filed by the respondent-husband under Section 9 of the Hindu Marriage Act, 1955 for the restitution of conjugal rights is ordered to be dismissed but with no order to costs. Appeal allowed.