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2012 DIGILAW 798 (PNJ)

Anudeep Singh v. Geetanjali Singh

2012-06-01

AJAY K.MITTAL, G.S.SANDHAWALIA

body2012
Judgment AJAY KUMAR MITTAL, J. 1. The appellant-husband having remained unsuccessful in getting a decree for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 (in short “the Act”) from the Family Court, Gurgaon has filed the present appeal assailing the judgment and decree dated 29.3.2012. 2. Put shortly, the facts of the instant case are that the appellant was married to the respondent on 30.11.1997. This was the second marriage of the parties. From the said wedlock, a son, namely, Samandeep Singh was born on 9.11.1998 at New Delhi at respondent's parental house. After the delivery, the respondent did not return to the matrimonial home and remained at the house of her parents. When the child was about six months old, the appellant and his parents insisted the respondent to return back to her matrimonial home. The respondent came with her son in her matrimonial home on Saturday and returned back to her parental house on the very next day, i.e. on Sunday. The first three birthdays of the child were celebrated at Gurgaon and thereafter all the birthdays were celebrated at Delhi only at the parental house of the respondent. Even the respondent did not allow the appellant to take their son with him. After 2005, the respondent came to her matrimonial home only once or twice and that too without the minor son. The appellant and his parents had never maltreated the respondent but they gave their love and affection to her since the day of the marriage. The appellant wanted the second child which the respondent flatly refused on 10.4.2011 and 17.4.2011. On 26.4.2011, the appellant asked the respondent to return to her matrimonial home but she refused. The appellant had been earning ` 60,000/- per month whereas the respondent had been earning ` 80,000/- per month. Thereafter, the appellant filed the petition under Section 9 of the Act for a decree of Restitution of Conjugal Rights. Notice of the said petition was issued to the respondent who filed reply controverting the averments made in the petition. The appellant filed rejoinder to the reply pleading that he is ready and willing to save their marriage and to keep the respondent and the minor son. All other averments made in the reply were denied and that of the petition were reiterated. The appellant filed rejoinder to the reply pleading that he is ready and willing to save their marriage and to keep the respondent and the minor son. All other averments made in the reply were denied and that of the petition were reiterated. On the basis of the pleadings of the parties, the following issues were framed by the Family Court:- “1. Whether the petitioner is entitled for a decree of restitution of conjugal rights on the grounds mentioned in the petition as alleged ? OPP 2. Relief.” 3. After analyzing the material led by the parties and hearing both the parties, the Family Court decided issue No.1 in favour of the respondent and against the appellant. Accordingly, the petition was dismissed vide judgment and decree dated 29.3.2012. Hence, the present appeal. 3. We have heard learned counsel for the appellant. 4. Learned counsel for the appellant submitted that in case notice was to be issued to the respondent, the efforts for reconciliation could be made. Ordinarily, the courts are inclined to issue notice where there appears to be chances of compromise or settlement. In the present case in view of the findings recorded and the reasons given by the Family Court dismissing the petition, the efforts for mediation would not give any fruitful result. The Family Court while adjudicating issue No.1 had in para 11 recorded that the husband was an alcoholic and drug addict and he used to vomit on his clothes and passed urine without removing the undergarments. It was further observed that the respondent had to wash his clothes and that the husband was got treated in De-addiction Centre of AIIMS which was provided by the respondent. The findings recorded by the Family Court are as under:- “11. It has come on record in the evidence of the respondent that the petitioner was an alcoholic and drug addict. He would vomit on his clothes and would pass urine without removing the undergarments and the respondent had to wash his clothes. The petitioner was got treated in Deaddiction Centre of AIIMS by the respondent. His registration number was 25620 and detail file work up number was 7200. He was taken to AIIMS several times for treatment. The family members of the petitioner did not cooperate the respondent in the treatment of the petitioner. The petitioner was got treated in Deaddiction Centre of AIIMS by the respondent. His registration number was 25620 and detail file work up number was 7200. He was taken to AIIMS several times for treatment. The family members of the petitioner did not cooperate the respondent in the treatment of the petitioner. When the respondent was pregnant, she did not get any support from the petitioner or his family members. The respondent had to go to Delhi to attend to her job. As and when she would visit the petitioner on weekends, he would take excess liquor in social gathering which was not reflecting well on the child. She was forced by the act and conduct of the petitioner to stop her week end visits at her matrimonial home. The petitioner never visited the respondent and their son at Delhi. Nor he rendered any financial support to them. I had occasion to record the statement of the respondent. During the recording of the statement of the respondent, I observed her demeanor in the witness box. No sane lady would allow her matrimonial home to be broken by leveling false allegations against her husband especially when her husband is a Dental Surgeon. In my opinion, the respondent is a truthful witness. There is no reason to disbelieve her testimony. There is nothing on record that till date, the petitioner had sent any money by way of money order etc. to his wife or son to support them financially. The respondent was forced by the petitioner to leave her matrimonial home due to situation created by him. Till date the petitioner has not filed any petition for taking the custody of his minor son. He does not know where his son is studying and who is bearing his educational expenses. I had interviewed the child in my chamber on 21.03.2012. He had told me that he did not want to see his father as he had neglected him and his mother. In the facts and circumstances of the case, I am of the opinion that the respondent has reasonable excuse to withdraw from the society of the petitioner. She cannot be forced to live with the petitioner. This issue is disposed off accordingly against the petitioner and in favour of respondent.” 5. No illegality or perversity could be pointed out in the aforesaid findings. 6. She cannot be forced to live with the petitioner. This issue is disposed off accordingly against the petitioner and in favour of respondent.” 5. No illegality or perversity could be pointed out in the aforesaid findings. 6. In view of the above, we find no merit in this appeal and the same is hereby dismissed. 7. Since the appeal has been dismissed on merits, no separate order is being passed on the application under Section 5 of the Limitation Act for condonation of 28 days' delay in filing the appeal and the same is disposed of as such.