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2017 DIGILAW 1338 (KAR)

K. S. Siva Das v. K. Lekha

2017-10-01

R.S.CHAUHAN, SREENIVAS HARISH KUMAR

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JUDGMENT : Raghvendra S. Chauhan, J. The appellant has challenged the Order dated 20.04.2001 whereby the Learned Family Court has allowed the application filed by the respondent-wife under Section 9 of the Hindu Marriage Act, 1955 ('the Act', for short). 2. Briefly stated the facts of the case are that the appellant, K. S. Siva, and the respondent No. 1, K. Lekha, were married on 15.09.2000, at Tiruvanandhapuram, (Kerala), in accordance with the Hindu customs and rites. At the time of the marriage, the appellant was working in a construction company at Secunderabad, Andra Pradesh and the respondent-wife was working in S.D.M. Dental Science College, Dharwad. According to the appellant, the respondent-wife stayed with him for a week. Thereafter, she returned to resume her duties at the Dental College, Dharwad. During the marriage, the appellant claims that he would visit the wife at Dharwad, and request the respondent-wife to resume company, and to shift to Secunderabad, and to stay in the matrimonial home. He had even tried to find a job for her in the Army Dental College, Secunderabad, but she refused to stay with him at Secunderabad. During the marriage, on 06.07.2002, the respondent-wife delivered a female child, Meghana. According to the appellant, subsequently it is noticed upon his stay at Dharwad, that his wife would leave the house early in the morning and would return to the house late at night. Therefore, he suspected that she was having adulterous affair with one Mr. Arvind. Due to the adulterous behaviour of his wife, he filed a divorce petition on the ground of adultery. 3. During the pendency of the divorce petition, the respondent-wife, in turn, filed an application under Section 9 of the Act. In order to establish their respective case, the appellant examined himself as witness and the respondent-wife examined three witnesses including Mr. Arvind and his wife, Smt. Bharati, as R.Ws. 2 and 3. The appellant-husband also submitted certain documents. After going through the oral and documentary evidence, the Learned Family Court dismissed the divorce petition, but allowed the application for restitution of conjugal rights under Section 9 of the Act. Hence, this appeal before this Court. 4. Dr. I. Sujata, the Learned Counsel for the appellant submits that since the respondent-wife was leading an adulterous life, as alleged by the appellant-husband in his divorce petition, he had sufficient reason to stay away from his wife. Hence, this appeal before this Court. 4. Dr. I. Sujata, the Learned Counsel for the appellant submits that since the respondent-wife was leading an adulterous life, as alleged by the appellant-husband in his divorce petition, he had sufficient reason to stay away from his wife. Thus, the question of restitution of conjugal rights does not even arise in the present case. Therefore, the Learned Family Court has erred in allowing the application under Section 9 of the Act. Secondly, despite the decree for restitution of conjugal rights being granted in favour of the respondent-wife, still she has to resume cohabitation with the appellant-husband. Therefore, the passing of the said decree is merely a formality, and is merely ceremonious. Thus, the impugned order granting the decree of restitution of conjugal rights should be set-aside by this Court. 5. On the other hand, Smt. Prafulla Naik, the Learned Counsel for the respondent-wife, submits that the allegation leveled by the appellant-husband that the respondent-wife was living in an adulterous life has not been believed by the Learned Family Court. Since the appellant could not establish the factum of adultery, the divorce petition has been dismissed by the Learned Family Court. The said order has been upheld by this Court in the case of K.S. Siva Das v. Dr. K. Lekha, in MFA. No. 103098/2015, decided on 10.1.2017. Secondly, but the Learned Family Court has erred in directing the respondent-wife to join the company of the appellant-husband. Since it is the wife who had filed the application for restitution of conjugal rights, since the decree has been granted in her favour, the Learned Family Court should have directed the appellant-husband to join the company of his wife, and not the vise-versa. Therefore, the order dated 20.4.2015 needs to be modified by this Court, and not to be set-aside. 6. In rejoinder, the Learned Counsel for the appellant has asserted that the Learned Family Court is justified in directing the wife to join the company of the husband. For, it is the expectation of the society that it is the wife who has to live with the husband, and not the other way round. 7. Heard the Learned Counsel for the parties and perused the impugned order. 8. For, it is the expectation of the society that it is the wife who has to live with the husband, and not the other way round. 7. Heard the Learned Counsel for the parties and perused the impugned order. 8. In the appeal filed by the husband challenging non-grant of divorce, namely, M.F.A. No. 103098/2015, by judgment, dated 10.01.2017, this Court has dismissed the said appeal, and has confirmed the non-grant of divorce decree in favour of the appellant-husband. This Court has clearly held that the husband could not prove the fact that the wife was living in adultery. 9. Therefore, the two issues before this Court in the present appeal are, whether the Learned Family Court is justified in granting the decree for restitution of conjugal rights in favour of the wife or not? Secondly, whether the Learned Family Court is justified in directing the wife to rejoin the husband or not? 10. Admittedly, the appellant-husband had alleged that since the wife was living in adultery, he was justified in staying away from her company. However, the said allegation could not be proved by the appellant-husband. Since it is he, who has refused to live together with the respondent-wife, the Learned Family Court was justified in allowing the application for restitution of conjugal rights. 11. However, in the operative portion of the order, the Learned Family Judge, has directed the wife to join the company of the petitioner-husband. The Learned Family Judge has overlooked the fact that the petition for restitution of conjugal rights was filed by the wife, and not by the husband. Moreover, once the petition was filed by the wife, then the direction to rejoin the company of the other spouse should have been issued to the husband, and not to the wife. By directing the wife to rejoin the company of the husband, the Learned Family Court reveals a gender bias against women. That the Learned Judge still expects a woman to join the company of the husband is rather surprising. 12. In a age where women have joined the job market and have left the hearth and home in order to pursue professional goals, to expect woman to be a housewife, and to give up her dreams of a professional woman, is unjustified to the women as a class. 12. In a age where women have joined the job market and have left the hearth and home in order to pursue professional goals, to expect woman to be a housewife, and to give up her dreams of a professional woman, is unjustified to the women as a class. The judiciary must be aware not only of the economic realities of this nation, but also be sensitive to gender justice. The wife is no longer a shadow, or a appendage to the husband. A woman, as a wife, has right to stand financially on her own two feet, to pursue to her professional goals, and to serve the society as a professional woman. Therefore, while passing an order in an application for restitution of conjugal rights, the Court should be aware that there are chances that the husband and wife may be working in two different cities due to their professional needs and understanding. In such a scenario, to expect the wife to give up her professional career, and to join the company of her husband in a different city, is to inflict grave injustice on the woman. In order to discharge the matrimonial obligations, it is not essential that the husband and wife must live under the same roof throughout the year. The restitution of conjugal rights does not mean that it is only the wife who must silently follow the husband. Therefore, even if the husband and wife were to meet each other, spend quality time with each other, and discharge their marital responsibilities, even if periodically, even then the conjugal rights are being restored. 13. In the present case, since the petition had been filed by the wife, since the husband admits that he was periodically visiting the wife at Dharwad, the Learned Family Court, in fact, should have directed the husband to rejoin the company of the wife even if on a periodical basis. To compel the respondent-wife, who was the petitioner in the application filed under Section 9 of the Act, to join the husband is to be unjustified. For, her petition seeking restitution of conjugal rights, seems to have boomeranged upon the petitioner-wife. 14. Therefore, the operative portion of the Order dated 20.4.2015 deserves to be modified to the extent that the husband is directed to resume cohabitation with the wife. For, her petition seeking restitution of conjugal rights, seems to have boomeranged upon the petitioner-wife. 14. Therefore, the operative portion of the Order dated 20.4.2015 deserves to be modified to the extent that the husband is directed to resume cohabitation with the wife. In case the parties find it difficult to live in the same city, then the husband is directed to periodically visit the respondent-wife at Dharwad, or at any other place to where she may be transferred to, or she shifts to on her own volition. With this limited modification of the Order dated 20.4.2015, the Appeal filed by the appellant is dismissed.