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2016 DIGILAW 16 (MP)

Rekha Malviya v. Kamlesh Kumar

2016-01-05

C.V.SIRPURKAR, S.K.GANGELE

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JUDGMENT : C.V. Sirpurkar, J. This first appeal under Section 28 of the Hindu Marriage Act, 1955, has been preferred against the judgment and decree dated 22.2.2006 passed in Hindu Marriage Case No. 15-A/2005 by First Additional District Judge, Hoshangabad, whereby petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights filed by the respondent/husband Kamlesh Kumar was allowed. 2. Admitted facts before the trial Court were as hereunder: Respondent husband Kamlesh Kumar married the appellant wife Rekha Malviya by Hindu rites on 11.5.2003. The appellant wife has been living separately from respondent husband since the year 2004. A daughter was born in the wedlock, who is living with the appellant wife. On the date of filing of the petition under Section 9 of the Hindu Marriage Act by respondent husband, an application under Section 125 of the Code of Criminal Procedure filed by appellant wife Rekha Malviya was pending before the Court of Judicial Magistrate First Class. 3. The case of respondent husband before the learned trial Judge was that since very beginning, the appellant wife declined to have physical relation with the respondent husband. Soon after the marriage, when he tried to establish relation, the appellant wife ran out of house and shouted at the top of her voice that she did not want to have physical relations with the respondent husband. She also shouted that her parents had married her to the respondent against her wishes and that she was, in fact, belonged to someone else. Aforesaid utterances of the appellant wife were heard by neighbour Hanif Qureshi, who tried reason it out with the appellant but she threatened that if the respondent tried to establish physical relationship with her, she would commit suicide, by consuming poison. The respondent further pleaded in the petition that he told the appellant that even if the appellant had relations with someone else prior to her marriage, the respondent was prepared to accept her as his wife. Thereafter, very reluctantly the appellant permitted the respondent to have sexual relation with her only once. As such, appellant has been inflicted cruelty upon the respondent by denying him his conjugal rights. On 5.3.2004, the appellant went to her matrimonial home at Itarsi against the wishes of the respondent, along with her elder brother Narendra. She has been living their ever since. As such, appellant has been inflicted cruelty upon the respondent by denying him his conjugal rights. On 5.3.2004, the appellant went to her matrimonial home at Itarsi against the wishes of the respondent, along with her elder brother Narendra. She has been living their ever since. On numerous occasions, the respondent and his family members went to appellant's matrimonial home to bring her back but the respondent and his family members were insulted and driven away by family members of the appellant. Subsequently, the respondent filed an application in Family Reconciliation Center in P.S. Hoshangabad, where, in spite of notice, the appellant failed to appear; therefore, no compromise could be reached. The respondent is prepared to ignored past of the appellant and maintain her as his wife but she has been staying in her matrimonial home without any just cause or reason. 4. In her reply before the trial Court, appellant wife has denied that all averments made in the petition. She specifically denied that she ever declined to have marital relations with the respondent and that there was any such incident as pleaded in the petition. Her daughter Sonam @ Ashwani was born on 6.8.2004 as a result of normal conjugal relations between the appellant and the respondent. The appellant pleaded that though, her father had given sufficient ornaments, motorcycle and household items to the respondent at the time of marriage, the respondent and his family members used to pressurise the appellant to bring Rs. 50,000/- in cash in dowry. When she refused to oblige them, she was beaten and insulted by the respondent and his family members; however, not wishing to jeopardise her future, she kept tolerating the misconduct. When the appellant became pregnant, the respondent and his family members made her undergo sonography, in order to determine the sex of fetus. When they learnt that it was a girl, they tried to pressurise her into going for an abortion; however, the appellant refused. Consequently, even during the state of pregnancy she was beaten up and humiliated by the respondent and his family members. Meanwhile, the respondent cheated her by misrepresenting that he had become a C.I.D. Officer and on the pretext of getting a job for her, got her to sign many blank stamp papers and other documents. Subsequently, in July, 2004, she was sent by the respondent to her parental home at Itarsi. Meanwhile, the respondent cheated her by misrepresenting that he had become a C.I.D. Officer and on the pretext of getting a job for her, got her to sign many blank stamp papers and other documents. Subsequently, in July, 2004, she was sent by the respondent to her parental home at Itarsi. Even after the birth of her daughter, the respondent made no efforts to keep in touch with her and provide for their maintenance. Consequently, the appellant filed an application under Section 125 of the Code of Criminal Procedure. As a counterblast to aforesaid application, the respondent filed instant petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rites, in order to avoid paying maintenance allowance. 5. After the trial, petition for restitution of conjugal rights was allowed. Learned trial Judge observed that since it was an admitted fact that appellant was legally wedded wife of respondent and was living separately from him in her parental home, the burden of proving that she had sufficient cause and reason to withdraw from the society of the respondent, was upon the appellant. On appreciation of evidence adduced by the parties, learned trial Judge held that there were numerous discrepancies in the evidence of the appellant wife and her witnesses. It was further observed that the appellant had failed to provide details with regard to the allegations of cruelty levelled by her against respondent husband; therefore, her evidence was not worthy of credence. Consequently, it was held that the appellant had failed to prove that she was subjected to cruelty in connection with demand for dowry in the sum of Rs. 50,000/-. Learned trial Judge concluded that the appellant had also failed to prove that she was made to undergo sex determination test during her pregnancy and on learning that she was carrying a female fetus, she was subjected to further beating and humiliation and was pressurised to have abortion. She also failed to prove that ultimately, she was driven out of her matrimonial home and sent to her parental home with her brother. 6. The findings recorded by the trial Court have been assailed by learned counsel for the appellant mainly on the grounds that the trial Court has mired itself in trivia and has magnified the effects of minor discrepancies, while appreciating the evidence of the appellant. 6. The findings recorded by the trial Court have been assailed by learned counsel for the appellant mainly on the grounds that the trial Court has mired itself in trivia and has magnified the effects of minor discrepancies, while appreciating the evidence of the appellant. It has been particularly emphasised that learned trial Judge has failed to take into account the fact that the sole purpose of this application for restitution of conjugal rights was to avoid paying maintenance to the appellant and her daughter. It has further been argued that learned trial Court has ignored the fact that the respondent made wild allegations against the appellant wife with regard to her character which, in itself, is sufficient cause for the appellant wife to withdraw from the society of her husband; therefore, it has been prayed that the impugned judgment and decree are not sustainable in the eye of law and deserve to be set aside. 7. No one appeared on behalf of the respondent husband on the date of argument before this Court. As such, this appeal is being decided without the benefit arguments advanced on behalf of the respondent. 8. On perusal of the record and on due consideration of the arguments advanced by learned counsel for the appellant, this Court is of the view that this first appeal must succeed for the reasons hereinafter stated. 9. It is true that the burden of proving that the appellant had sufficient cause for withdrawing from the society of the respondent was upon the appellant wife. However, the discord between husband and wife is alleged to have started on the very next day of marriage. As per respondent, on 12th May, 2003, when he tried to have conjugal relations with his wife, she ran out of the house and the incident as pleaded in the petition occurred. The appellant wife has totally denied that any such incident ever occurred. Though, on this point the allegations made by the respondent were supported by his neighbour Hanif Quarashi (PW-2), it appears highly improbable that any women, on the very second day of her marriage, would create such a scene and go out of her matrimonial home and shout from the roof-top that prior to her marriage, she had relations with someone other than her husband. Even if a woman had such relations prior to her marriage, at worst, she would disclose the same to her husband behind closed doors. Thus, in the opinion of this Court, the incident as narrated by the respondent, is highly improbable. 10. In this regard, it may further be noted that respondent had alleged that he could establish sexual relations with his wife only once during her entire stay with him. This is also highly unlikely that she would conceive as a result of this solitary act. It is obvious that the averment that the appellant wife permitted to him to have sex with her only once, has been concocted with the sole aim of explaining the birth of the daughter. 11. The parties come from a lower middle class background. A person, whose wife proclaims from roof-top on very next day of her marriage that she belongs to someone else, is expected to file for divorce rather than restitution of conjugal rights. The reasons for this remarkable behaviour are not far to seek. It may be noted that the appellant wife moved an application for maintenance under Section 125 of the Code of Criminal Procedure on 28.1.2005. This petition for restitution of conjugal rites was filed by the respondent husband on the very next day, i.e. on 29.1.2005. In this petition for restitution of conjugal rites the appellant has written his occupation as nothing. He has admitted that an order for payment of interim maintenance at the rate Rs. 1700/- per month, has been passed against him but he has not complied with the order as he has no means for paying the amount. It is obvious that the main aim of this petition is to avoid payment of maintenance to his wife and daughter. 12. The respondent has made baseless allegations against appellant wife in the petition for restitution of conjugal rights imputing that she is unchaste and has tried to show off his magnanimity by proclaiming that in spite of her alleged shady paste, he was prepared to accept her as his wife and maintain her; though, it is not clear as to how he proposes to maintain her and her daughter if he earns nothing. In these circumstances, this offer to maintain his wife and his daughter if they lived with him, is nothing but a charade. In these circumstances, this offer to maintain his wife and his daughter if they lived with him, is nothing but a charade. It is simply a tactical ploy to avoid paying maintenance allowance, without any genuine desire to have the wife and daughter back with him. 13. A respondent who makes such baseless and wild allegations regarding the character of his wife in his pleadings, deserves nothing but scorn of the Court. It has been held by Apex Court in the case of Vijay Kumar v. Neela, AIR 2003 SC 2462 that where the husband in his written statement has extensively enumerated instances and incidents against wife, branding her as an un-chaste women, who keeps extra marital relations, it is a grave assault on the character, honour, reputation and status as well as mental health of the wife, judged in the context of educated Indian wife in Indian conditions and by Indian standards. Such allegations amount to worst form of insult and cruelty, sufficient by itself, to substantiate cruelty in law. 14. Aforesaid observations made by the Supreme Court apply with full force to the instant case. The allegations of the crime made in the petition by the respondent husband, in itself amount to assault on the dignity and honour an educated Indian wife and tantamount to infliction of mental cruelty in law; therefore, the prayer for restitution of conjugal rites deserves to be rejected on this ground alone. 15. Learned trial Judge seems to have taken a narrow view of the matter and has given undue weightage to the trivial discrepancies in the testimony of appellant wife and her witnesses, resulting in gross misappraisal of evidence on record. The attendant circumstances and ulterior motives seem to have been completely lost sight of such. In the process, learned trial Judge has missed the broader picture. As such, the findings recorded by learned trial Court cannot be sustained. 16. On re-appreciation of evidence, it is held that appellant wife had sufficient reason to withdraw from the society of her husband; therefore, the prayer of respondent husband for restitution of conjugal rights cannot be granted. 17. In the process, learned trial Judge has missed the broader picture. As such, the findings recorded by learned trial Court cannot be sustained. 16. On re-appreciation of evidence, it is held that appellant wife had sufficient reason to withdraw from the society of her husband; therefore, the prayer of respondent husband for restitution of conjugal rights cannot be granted. 17. Consequently, this first appeal is allowed judgment and decree dated 22.2.2006 passed by the Court of First Additional District Judge, Hoshangabad, in Hindu Marriage Case No. 15-A of 2005 is set aside and the petition of respondent husband Kamlesh Kumar filed under Section 9 of the Hindu Marriage Act for restitution of conjugal rights, is dismissed. 18. The respondent is directed to bear the cost of appellant throughout.