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2013 DIGILAW 615 (KAR)

SUDHA v. B. T. RUDRESH

2013-06-03

B.SREENIVASE GOWDA, N.KUMAR

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JUDGMENT N. KUMAR, J.-This appeal is preferred by the wife challenging the order passed by the Senior Civil Judge, granting a decree for restitution of conjugal rights. 2. For the purpose of convenience, the parties are referred to as they are referred to in the original petition before the trial Court. 3. B.T. Rudresh, the petitioner married Smt. Sudha on 21-04-98 according to Hindu rites. It was an arranged marriage. In 1999, a son was born. There afterwards, differences arose between the parties. The case of the petitioner is, without informing him, the respondent was in the habit of leaving the house, she was not performing her marital obligations, she was not doing any work in the house, because of her conduct the people in the village started doubting the petitioner, though he and his family members looked after the respondent with love and affection and the elders also advised her, she has not changed her behaviour and conduct. She was unnecessarily quarrelling with his family members, abusing them with vulgar words and spoiled the peace in the house. Without any justification she has left the company of the petitioner. A legal notice came to be issued which was duly served on her. She had not sent any reply and therefore, he was constrained to file this petition for restitution of conjugal rights. 4. After service of notice, the respondent entered appearance, filed her statement of objections contesting the claim. It is her specific case that the petitioner has married one Smt. Savitha, daughter of Chandrappa and Narasamma of Danawadi village, Bhadravathi taluk. He married her in Sri. Giri Ranganatha Swamy temple of Danawadi village. He forced her to give him divorce, so that he can bring a second wife. As she did not agree, she was assaulted and she was thrown out of the house. As he threatened her that if any Police complaint is lodged he would pour kerosene and kill her, she had not lodged a Police complaint. However subsequently on 14-03-2003, a criminal case has been filed in Crime No. 35/2003. Subsequently, charge sheet was filed and a case was registered in Case No. 395/2006. Now, the petitioner is living with his second wife at Holebyranahalli. It is under these circumstances, she was constrained to leave his company and live with her parents. 5. However subsequently on 14-03-2003, a criminal case has been filed in Crime No. 35/2003. Subsequently, charge sheet was filed and a case was registered in Case No. 395/2006. Now, the petitioner is living with his second wife at Holebyranahalli. It is under these circumstances, she was constrained to leave his company and live with her parents. 5. On the aforesaid pleadings, the trial Court framed the following issues : (vernacular matter not given) 6. The petitioner in order to substantiate his claim, examined himself as P.W.1. Also examined his maternal uncle as P.W.2 and produced 5 documents which are marked as Exs. P.1 to P.5. On behalf of the respondent, respondent was examined as R.W.1. She also examined two other witnesses as R.Ws. 2 and 3 and also produced 6 documents which were marked as Exs. R.1 to R.6. 7. The Tribunal on consideration of the aforesaid oral and documentary evidence on record held, it is the wife who has deserted the husband without any sufficient cause. The petitioner has established the desertion and therefore the petitioner is entitled to a decree for restitution of conjugal rights. 8. Aggrieved by the said order, the respondent-wife has preferred this appeal. In the appeal, two applications are filed for production of additional documents and for production of certified copy of the order passed by the competent Court. In the first application, the documents sought to be produced is the judgment and order passed by the Criminal Court in C.C. No. 4390/2003 where the petitioner is convicted for the offence punishable under Section 498A IPC to undergo RI for a period of one month and also under Section 506 IPC to undergo RI for a period of one month. He is also directed to pay compensation in a sum of Rs. 2,00,000/-to the wife within a period of two months, failing which the wife is at liberty to recover the said amount as per Section 431 of Cr.P.C. 9. Alongwith the other application, the documents produced are the birth certificates and school records of the two children born to the petitioner from the second wife. 10. 2,00,000/-to the wife within a period of two months, failing which the wife is at liberty to recover the said amount as per Section 431 of Cr.P.C. 9. Alongwith the other application, the documents produced are the birth certificates and school records of the two children born to the petitioner from the second wife. 10. The learned Counsel for the appellant, assailing the impugned order contends, when the petitioner has taken a second wife, living with her and two children are born to her, in those circumstances if the respondent-first wife has withdrawn from the company of the petitioner, it is the petitioner who is the cause for desertion and therefore he is not entitled to a decree for restitution of conjugal rights. The certified copy of the Magistrate Court's order shows, he has been convicted for the offence punishable under Sections 498A and 506 of IPC. When her life is not safe in the company of the petitioner and when she was assaulted, if she has left his company, she cannot be compelled to reside with her husband. 11. Per contra, the learned Counsel for the petitioner-husband submits, he has no instructions, order impugned is valid and does not call for interference. 12. In the light of the aforesaid facts and rival contentions, the point that arises for our consideration is, 'whether a case for interference is made out?' 13. Facts are not in dispute. Parties were married on 21-4-98 according to Hindu rites. A son was born to them in the year 1999. Subsequently, disputes arose between the parties. The cause for the said dispute is, the petitioner wanted to take a second wife. In fact, he has married the second wife and has two children from her which is amply demonstrated by the birth certificates and the school certificates which are produced in this appeal. It is in this background, her case that the petitioner was insisting that the respondent should agree for a divorce is probably true and when she did not give consent, she was assaulted. Now we have the judgment of the Criminal Court where the petitioner has been convicted for the offence punishable under Sections 498A and 506 of IPC. It is in this background, her case that the petitioner was insisting that the respondent should agree for a divorce is probably true and when she did not give consent, she was assaulted. Now we have the judgment of the Criminal Court where the petitioner has been convicted for the offence punishable under Sections 498A and 506 of IPC. If a husband assaults a wife, threatens her and he marries for the second time during the subsistence of the first marriage and he has two children, he cannot ask the first wife to live with him. It is under these circumstances if she has withdrawn from the company of the petitioner, she cannot be found fault with. It is the petitioner who is the cause for her desertion. Therefore, he being the cause for her withdrawal, he is not entitled for any relief at the hands of this Court. Unfortunately, the lower Court has not properly appreciated the facts in its proper perspective and has treated the case as a criminal case and virtually rejected the defence set out by the respondent on the ground that it is not substantially established and thus committed a serious error. In the light of the material on record and when once a second marriage is proved, birth of two children under the second marriage is proved and the petitioner is convicted for assaulting the wife, the petitioner is not entitled for a decree of restitution of conjugal rights. 14. In that view of the matter, we pass the following order : Appeal is allowed. The decree for restitution of conjugal rights is hereby set aside. The petition filed for restitution of conjugal rights is dismissed. The respondent-husband shall pay a cost of Rs. 10,000/- to the petitioner towards cost of this appeal.