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2017 DIGILAW 1110 (RAJ)

Radhey Shyam v. Sushila Radhey Shyam Paliwal

2017-05-01

GOVIND MATHUR, V.K.MATHUR

body2017
JUDGMENT : 1. This appeal is preferred to challenge the judgment and decree dated 17.12.2015, passed by Family Court, Bhilwara in Misc. Civil Case No. 85/2013. By the judgment aforesaid learned Family Court dismissed an application preferred under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as "the Act of 1955") by the appellant husband. In brief, factual matrix of the case is that the appellant entered into a wedlock as per Hindu rites with the respondent on 30.4.2007. As a consequence to the wedlock the couple is having a male child who is presently residing with the respondent. As per the appellant, the respondent was never interested to stay at her matrimonial home and, therefore, since beginning she was not maintaining good relations with the appellant. The appellant tried his level best to maintain the marriage and, therefore, he shifted to a rented accommodation in the year 2009, but that too of no consequence. The respondent, as per the appellant, was in habit of making satires and taunting the appellant being unemployed. In the month of September, 2009 the respondent without assigning any reason left the house and proceeded to reside with her parents. Despite efforts she did not return to the matrimonial home, therefore, an application was preferred under Section 9 of the Act of 1955 for restitution of conjugal rights, but that was withdrawn by the appellant as certain responsible persons belonging to the community were making efforts to resolve the dispute between the parties. On being failed to have any positive response, an application under Section 13 of the Act of 1955 was preferred with the allegation of cruelty and desertion. The respondent also preferred an application under Section 9 of the Act of 1955. By the judgment impugned learned Family Court, while dismissing the application under Section 13 of the Act of 1955, allowed the application preferred under Section 9 by the respondent. 2. The submission of the learned counsel appearing on behalf of the appellant is that the Family Court failed to appreciate that the adequate evidence was available on record to establish cruelty on part of the respondent and also desertion from matrimony for a period of more than two years without having any valid reason. 3. 2. The submission of the learned counsel appearing on behalf of the appellant is that the Family Court failed to appreciate that the adequate evidence was available on record to establish cruelty on part of the respondent and also desertion from matrimony for a period of more than two years without having any valid reason. 3. Per contra, as per the respondent, she was always ready and willing to maintain the matrimony, but the appellant himself was not interested to protect the same and as a consequence of that she had no option but to remain with her parents. According to the respondent she was ready and willing to maintain the marriage and for that purpose she went to her matrimonial home on several occasions, but all the time she was subjected to cruelty. It was also submitted that the application under Section 9 of the Act of 1955 is preferred only for restitution of conjugal rights and that is a fact sufficient to establish the bona-fides. 4. Learned Family Court, after examining the entire evidence available on record, arrived at a conclusion that the appellant failed to establish cruelty and also desertion by the respondent for no just reason. The Family Court also held that the appellant was not permitting the respondent to join the matrimonial home and, therefore, declared her entitled to have a decree for restitution of conjugal rights. 5. In appeal, the only argument advanced by learned counsel appearing on behalf of the appellant is that the court below failed to appreciate the evidence which, as per him, is sufficient to establish cruelty as well as desertion. 6. On examination of entire record, we do not find any merit in the argument advanced. From examination of record it is apparent that whatever grounds have been taken by the appellant in the application under Section 13 of the Act of 1955 are not supported by the evidence. There is no evidence on record to establish that the respondent made any effort to have a separate home or insistence to stay with her parents. True it is, the appellant adduced ocular evidence by getting himself examined before the Family Court, wherein he stated that the respondent was not interested in staying at matrimonial home, but that fact has been denied by the respondent. True it is, the appellant adduced ocular evidence by getting himself examined before the Family Court, wherein he stated that the respondent was not interested in staying at matrimonial home, but that fact has been denied by the respondent. The respondent, as already stated, has also preferred an application under Section 9 of the Act of 1955 and this fact too establishes that she was interested in maintaining the marriage. 7. Much emphasis is given by learned counsel appearing on behalf of the appellant that the respondent threatened the appellant for committing suicide and i.e. nothing but cruelty. On examination of record, it reveals that it is only once the respondent while in hot talks with the appellant stated that she may commit suicide. Such spontaneous statement is quite obvious during the course of minor quarrels, but by no stretch of imagination that can be termed and treated as cruelty sufficient to annul a marriage. An important aspect of the matter is that a decree under Section 9 of the Act of 1955 for restitution of conjugal rights is granted to the respondent and no challenge to that has been given by the appellant. The appellant, as such, has accepted the decree aforesaid. Looking to this fact and also for the reasons given in preceding paras, we do not find any merit in this appeal, hence, the same is dismissed. Appeal Dismissed.