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2017 DIGILAW 379 (UTT)

PANKAJ KUMAR v. MEGHA UPADHYAYA

2017-07-13

RAJIV SHARMA, SHARAD KUMAR SHARMA

body2017
JUDGMENT : Sharad Kumar Sharma, J. This is the appeal which is listed with connected FA No. 122 of 2012 Pankaj Kumar v. Megha. But since the instant appeal is against the judgment under section 9 of the Hindu Marriage Act and appeal FA No. 122 of 2012 is against the judgment passed under Section 13, they are being decided separately, as parameters of consideration are absolutely different for Section 9 and section 13 of the Hindu Marriage Act. 2. The husband has filed appeal against the grant of a decree under Section 9 dated 29.09.2012 in Suit No. 20 of 2010 "Megha Upadhyaya v. Pankaj Kumar", by the proceedings instituted by the plaintiff-respondent under section 9 of the Hindu Marriage Act for restitution of conjugal rights was decreed. 3. The grounds taken for challenging the judgment impugned by the appellant are that there has been cruelty as pleaded by the plaintiff-respondent, soon after the marriage she started levelling allegations against husband on trivial issues, when all the efforts made by the parents failed. To resolve the disputes and also because of the fact that the cruelty did not abate, suit was filed for dissolution of marriage. 4. The challenge was given to the impugned order under section 9 of the Hindu Marriage Act by the husband. The case of the appellant was that there was cruelty and desertion is at the behest of the respondent. She had knowingly deserted w.e.f. 05.07.2003 when she has left the house on her own free will. The appellant also contended that he has made all sincere efforts to fetch her back but the same was not acceded to. As such, the desertion is because of the respondent. 5. The wife has also simultaneously instituted the proceedings under section 498-A, 504, 506, 323 of IPC and 3/4 of Dowry Prohibition Act against the appellant. On given challenge to the summoning order, passed in the proceedings under Section 498- A, 504, 506, 323 of IPC and 3/4 Dowry Prohibition Act. The revisional court vide order dated 24.10.2011 had set aside the summoning order as against rest of the family members except the husband-appellant. Setting aside the summoning order in the criminal proceedings would show that as a matter of fact, there was no cruelty exercised by the husband because the proceedings on the criminal side stood terminated this itself will be resulting into a cruelty. Setting aside the summoning order in the criminal proceedings would show that as a matter of fact, there was no cruelty exercised by the husband because the proceedings on the criminal side stood terminated this itself will be resulting into a cruelty. 6. The appellant placed reliance on the deposition made by the respondent in his cross-examination wherein it was alleged that the respondent has admitted the fact of institution of the criminal proceedings, as well as, proceedings under section 9 of the Hindu Marriage Act. 7. According to the case of the plaintiff-respondent, was that she has instituted proceedings under section 9 of the Hindu Marriage Act. Because after being married on 29.11.1999, according to the Hindu rites and rituals and the father of the respondent is said to have invested a handsome amount in performance of the marriage. In the application under section 9 of the Hindu Marriage Act, the respondent pleaded that there was conspiracy hatched against her by her in-laws, by wrongfully projecting that the plaintiff-respondent has decline on 03.12.2009 to partition in the property on the death of her parent. To develop her case, she also stated that on account of the aforesaid conspiracy in relation to the property, she was thrown out of the house at 4.00 PM on 03.12.2009. 8. The appellant-husband contended that he tried to resolve the dispute and tried to bring the respondent back, but it yielded no result. The wife's family members declined to send her back. On the basis of the false story because rather she was prohibited by the husband and his family members from performing her matrimonial obligations as she was not permitted to reside in the accommodation and she was thrown out on 03.12.2009 from the house, hence she filed section 9 application. 9. The appellant-husband, after putting in appearance stated in the objection under section 9 of the Hindu Marriage Act filed by the respondent for restitution of conjugal rights. In case as it was also referred to the court below that for the last 7 years he has been deserted by the respondent-plaintiff and she is not discharging her matrimonial obligations. The disputes between the husband and wife was not being settled, the husband contended that he was forced to file a Suit being No. 324 of 2009 under section 13 of the Hindu Marriage Act for dissolution of marriage. 10. The disputes between the husband and wife was not being settled, the husband contended that he was forced to file a Suit being No. 324 of 2009 under section 13 of the Hindu Marriage Act for dissolution of marriage. 10. On exchange of pleadings, the Court framed two issues and one of them is the core issue for the purposes of considering Section 9 application to the following effect "as to whether the defendant to the suit had deserted the plaintiff-appellant for just reasons", and, secondly "what liability he has to discharge after throwing her out from his home on 03.12.2009." 11. To support her contention, the plaintiff-respondent recorded the statement herself as PW-1 and Mr. Mahendra Kumar as PW-2 and other documents on record. In response to it, the defendant only appeared in the witness box and recorded his evidence to the objection under Section 9 application. 12. In the proceedings under section 9 of the Hindu Marriage Act, 1955, it provides that the Court has to scrutinized as to whether either of the party to the matrimony has withdrawn himself/herself from the relationship for without any reasonable excuses. It provides an avenue for the aggrieved party to pray from the Court for restitution of conjugal right, if the Court may on considering the circumstances given under Section 9 may pass a decree for restitution of conjugal rights. 13. The leaned trial court, while deciding issue no. 1 on the basis of the statement of the appellant-husband recorded the finding of the fact that it is admitted inter-see between the parties to case, i.e. the marriage which was solemnized on 29.11.1999. On perusal of the application filed under Section 24, the case of the respondent was that she was thrown out from the house on 03.12.2009 as she has objecting the demand of the appellant-husband, claiming share in the property of the father of the respondent. 14. On account of this reason that the appellant had not discharged his matrimonial obligations for more than 7 years this itself amount to a cruelty. A reference was made by the husband-appellant that he himself has instituted a proceeding for dissolution of marriage under section 13 of the Hindu Marriage Act and thus the proceeding under Section 9 is an afterthought as counterblast. A reference was made by the husband-appellant that he himself has instituted a proceeding for dissolution of marriage under section 13 of the Hindu Marriage Act and thus the proceeding under Section 9 is an afterthought as counterblast. This cannot be accepted because the wife at all the stages of proceedings and invariably in all the pleadings has specifically taken stand that she is willing to join the appellant and to discharge her matrimonial obligations. But on the other hand, the appellant-husband had placed reliance in the proceedings under Section 13 wherein he has sought for dissolution of marriage, showing his intention to divorce the plaintiff-respondent. 15. Under the given circumstances and the impact of the proceeding which is going on, it shows the bend of mind of the appellant that he was not willing to settle his life and restore the matrimonial relationship and that is why he was harping upon the proceeding under section 13 of the Hindu Marriage Act. The case of the appellant for the purposes of considering the Section 9 vis-a-vis proceeding under Section 13 filed by the respondent will have no effect, both are the independent and for independent purpose and thus merely because the husband has initiated proceedings under section 13 of the Hindu Marriage Act, will have no affect as Section 9 proceedings. 16. In the institution of marriage, where a male or female join together as husband and wife, they simultaneously with the said relationship, also have to discharge the responsibilities attached to matrimony, because marriage itself cannot be treated as to be an independent responsibilities and when the responsibilities are not being performed by either of the parties to the marriage, the legislature has provided redressal forum under section 9 of the Hindu Marriage Act for restitution of conjugal rights. 17. This controversy has to be visualized from another view point. Proceedings under section 9 of the Hindu Marriage Act filed by the respondent, the consequential effect is that the marriage between the parties held on 29.11.1999, will subsists and would enforce the matrimonial obligations, section 9 of the Hindu Marriage Act, 1955 was rightly considered and allowed and pendency of Section 13 could not have any effect of Section 9. 18. On perusal of the statement submitted by the respondent as affidavit-in-chief, she has specifically pleaded that she was deserted by the husband on 03.12.2009. 18. On perusal of the statement submitted by the respondent as affidavit-in-chief, she has specifically pleaded that she was deserted by the husband on 03.12.2009. In the cross-examination, the appellant has not placed any question, nor challenged the aforesaid plea in the affidavit with regard to desertion, nor any question was placed on the said issue in the proceedings before the court below. The plaintiff (respondent herein) to show and establish desertion has also adduced other oral witnesses, which too, supported the version of the plaintiff and in the statement of even PW-2, no question was placed by the appellant on the fact of the desertion nor the same was challenged. 19. Under these circumstances, it shows that as a mater of fact desertion on 03.12.2009 stands proved and if it is against the desertion of 03.12.2009, relief claimed by the wife-respondent is the only recourse under section 9 of the Hindu Marriage Act. Because the desertion is at the behest of the husband as against the wife who has always on all proceedings expressed that she wants to discharge her matrimonial obligations by staying with the appellant, the court below has rightly decreed the application under section 9 of the Hindu Marriage Act. 20. The controversy at hand has to be looked into from another angle that the proceeding under Section 9 filed by the appellant was subsequent to Section 13. During the pendency, on the basis of Section 13 the allegations was yet to be established by the evidence in the proceeding under Section 13. Thus, the decision rendered in the proceeding under section 9 of the Hindu Marriage Act, since being simply based upon the fact of desertion and failure to discharge matrimonial obligations during the period when the marriage was continuing, was wrong, and thus the petition under Section 9 has rightly been allowed. 21. From the perusal of the affidavit filed in support of Section 9 application along with the objection and reading the same in the light of the statement recorded, there has no reason as to why the appellant should shy away from not performing his matrimonial obligations when he admits the fact to have been married with the plaintiff-respondent. 22. Hence, the judgment passed by the court below on 22.09.2012 is affirmed and the appeal is dismissed with costs. 23. 22. Hence, the judgment passed by the court below on 22.09.2012 is affirmed and the appeal is dismissed with costs. 23. In view of the fact that the appeal of the husband-appellant against the decree under section 9 of the Hindu Marriage Act, 1955 granted in favour of the wife is dismissed. He is directed to discharge his matrimonial obligations as restored by the judgment passed by the court below. The Registry is directed to prepare the decree to the said effect. 24. Apart from the above and the grounds as narrated in the Memorandum of Appeal, no other ground was pressed by the appellant, while challenging the order impugned.