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2013 DIGILAW 2589 (BOM)

Anil Kondiba Satoshe v. Nanda Anil Satoshe

2013-12-16

MRIDULA BHATKAR

body2013
JUDGMENT Admit. Notice made returnable forthwith. By consent, the appeal is heard finally at the stage of admission. 2. This Appeal arises out of the judgment and order dated 27th April, 2012 passed by the Civil Judge, Senior Division, Thane in a Marriage Petition No. 382 of 2010 filed for restitution of conjugal right. 3. The appellant/husband and respondent/wife got married on 16th May, 2008 and they both started residing together at the residence of the appellant. On 25th September, 2009 a girl child named Durga was born out of this wedlock. The respondent went to her maiden home for delivery, but she did not come back thereafter and the appellant and his mother brought five months old baby back to their house. It is the case of the appellant that though the appellant requested the respondent to come and stay with him and lead a matrimonial life, she was always reluctant. It is the contention of the appellant that the respondent used to fight on petty issues and also to shirk from doing domestic work, because of which his mother had to take the responsibility of the entire domestic work. It is the case of the appellant that the respondent was not ready to reside with him along with his parents but she wants to reside with him in a separate residence. The respondent used to nag the appellant for buying a separate room. Considering the financial condition, it was not possible for the appellant to have a separate house and also to look after his parents in the other house. It is the case of the appellant that the respondent was, therefore, not happy and so she did not came back after the delivery to stay with him. 4. Per contra, the respondent-wife has denied all the allegations and averments raised in the Marriage Petition. It was contended that the appellant-husband and his mother used to harass and abuse her and she was driven out of the house. It is the case of the respondent that five months after the delivery, her husband and mother-in-law came to her maiden house and literally snatched the baby girl and returned back to their house. The respondent has specifically denied that she has no desire to continue her married life but she is always interested to stay with the appellant in a separate house and lead a married life with him. The respondent has specifically denied that she has no desire to continue her married life but she is always interested to stay with the appellant in a separate house and lead a married life with him. 5. The Learned Judge framed issue on restitution of conjugal rights whether the respondent has visited the appellant without any good and justifiable cause or not. The appellant and respondent both have filed their affidavits in lieu of examination-in-chief and were cross-examined by their respective counsels. After considering their evidence, the learned Judge answered the issue in negative and dismissed the petition. 6. The learned counsel for the appellant submitted that the contention raised by the respondent-wife about forcibly taking the child from her custody is entirely false. He pointed out that no police complaint was lodged by the respondent. If that would have been true, then she would have definitely approached the police for her child. He further submitted that there is no good reason for the respondent to leave the house and stay with her parents at her maiden house. He further submitted that the respondent does not want to stay with him only because she has been insisting to have a separate house and she does not want to stay with her in-laws. The learned counsel submitted that the trial Court ought to have considered that there is no good reason to leave the company of the appellant. 7. The learned counsel for the respondent while assailing the submissions of learned counsel for the appellant has submitted that the respondent-wife is always ready and willing to stay with the appellant and continue her married life. However, due to certain circumstances, she could not go back for want of sufficient privacy in the house. The learned counsel drew my attention to two notices dated 29th April, 2010 and 24th May, 2010 sent by the appellant to the respondent. The learned counsel for the respondent pointed out that in the said notices, the appellant has expressed his wish to untie a matrimonial knot and also to give divorce to her. He submitted that the respondent is from the village and the appellant is residing in a house of one room kitchen in Navi Mumbai where all the family members, i.e., appellant, respondent, small child, mother-in-law, father-in-law, brother-in-law stay together and sleep in one room. He submitted that the respondent is from the village and the appellant is residing in a house of one room kitchen in Navi Mumbai where all the family members, i.e., appellant, respondent, small child, mother-in-law, father-in-law, brother-in-law stay together and sleep in one room. He submitted that, on instructions, he found that this caused great embarrassment to the respondent and therefore, though she is willing to stay with the appellant, she is constrained to stay with him. 8. Perused the judgment, record and proceedings, The issue of custody of girl child Durga, who is now four years old is pending before the mediator at Taluka Gandhinglaj, District Kolhapur. Admittedly, the child is staying with her father since she was five months old. After going through the evidence and her submissions, it is found that there is no such good reason for the parties to stay separately and discontinue their married life. A fact that the child has been staying with her father is not denied. The reason for the fights and discord is mainly for the reason of not having enough privacy to the couple due to paucity of space in the house. The evidence on the point of harassment or torture which is tendered by both the parties is not of any serious nature, but the incidents are on the natural wear and tear in the married life. Perused the notice dated 24th April, 2010 sent by the appellant to the respondent. In that notice, the appellant has mentioned that if she won't come back and reside with him, then he could be constrained to take appropriate legal action including divorce. In the notice dated 24th May, 2010, the appellant has also mentioned about the attempts made in the several meetings during mediation, however, they all failed and if at all she would not come back, then he would be constrained to take legal action. He also expressed that it is difficult to join her in the Society. There is one application given by the appellant dated 21st June, 2010 about mental harassment by the respondent. After going through these notices, it is found that the appellant is keen to reside and cohabit with her and to continue their married life. 9. On this background, the grievance made by the respondent is required to be examined. The respondent is a village girl. After going through these notices, it is found that the appellant is keen to reside and cohabit with her and to continue their married life. 9. On this background, the grievance made by the respondent is required to be examined. The respondent is a village girl. She is residing with her in-laws including her brother-in-law in a small one room kitchen house in Navi Mumbai. It appears from the submissions that she is continuously demanding a separate residence to her husband. As rightly pointed out by the learned counsel for the respondent that the respondent-wife needs sufficient privacy to co-habit. She, therefore, is reluctant to stay with her in-laws. She finds it difficult to get enough room to establish emotional as well as physical dialogue with her husband. The issue is a very delicate but the reason is very basic and true, which is to be appreciated being her natural need of body and mind. I am of the view that this problem can be sorted out with mature approach. No sufficient reason has been pointed out by the appellant that respondent has left his company without any good cause. The demand of privacy to establish her matrimonial relationship and to have good dialogue with her husband in all the respect is undoubtedly a justifiable cause and the view taken by the trial Court rejecting the petition cannot be faulted with. No interference is called for in the judgment and order passed by the trial Court. 10. Appeal is dismissed. 11. In view of dismissal of Appeal, Civil Application does not survive and the same is accordingly disposed of.