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2018 DIGILAW 20 (MP)

Rakesh Kesharwani v. Savita Gupta

2018-01-05

ANJULI PALO, S.K.GANGELE

body2018
JUDGMENT Smt. Palo, J.--1.This appeal has been filed by the appellant-husband under section 19 of the Family Courts Act, 1984 against the judgment and decree dated 8.10.2012 passed by Principal Judge, Family Court, Jabalpur in Civil Suit No. 41A/2012 whereby the decree for restitution of the conjugal rights, under section 9 of the Hindu Marriage Act has been passed in favour of the respondent/wife. 2. The respondent is the legally wedded wife of the appellant. Their marriage was solemnized on 16.2.2005. They have two sons. 3. The respondent has filed a suit for restitution of the conjugal rights against the appellant-husband on the ground that after few years of their marriage, the appellant and his family members harassed her. They took away the children from her. The appellant deserted her, therefore, a suit under section 9 of the Hindu Marriage Act was filed by the respondent against the appellant. 4. In the written statement the appellant-husband has denied all the allegations made by the respondent against him. He submitted that respondent-wife was never deserted by him. Prior to her marriage, she was mentally ill and was being treated by psychiatrist. She had abnormal behavior and she herself left the appellant's house. Appellant took her back on 13.12.2007. After three months from the birth of their second child the respondent again left her. She was residing with her parents at her maternal house. In such circumstances, it is impossible for him to reside together with his wife. 5. After considering all the above pleadings and evidence adduced by the parties, the learned trial Court found that the appellant deserted his wife without any just and proper reason. Hence, respondent-wife is entitled for a decree of restitution of the conjugal rights. 6. Against the above findings, this appeal has been filed by the appellant-husband on the ground that learned trial Court failed to consider the evidence of the appellant which proves a reasonable excuse for leaving the company of the respondent. On the other hand, he is entitled to a decree for divorce or judicial separation because of physical and mental cruel behavior of the respondent. She is suffering from mental disorder. Thus, the appellant prayed to dismiss the suit under section 9 of the Hindu Marriage Act. 7. We have heard learned counsel for the parties at length and perused the record. 8. She is suffering from mental disorder. Thus, the appellant prayed to dismiss the suit under section 9 of the Hindu Marriage Act. 7. We have heard learned counsel for the parties at length and perused the record. 8. Learned counsel for the appellant submits that appellant is agreed to pay all the reasonable expenses of the respondent, i.e., for her maintenance and treatment according to his financial capacity. 9. Learned counsel for the respondent vehemently opposed the contention of the appellant and submits that learned trial Court rightly passed the impugned order in favour of the respondent. 10. The question for consideration is that - whether learned trial Court wrongly granted the decree against the appellant under section 9 of the Hindu Marriage Act for restitution of conjugal rights ? 11. It is not in dispute that the respondent is legally wedded wife of the appellant and she was residing separately from the appellant since year 2009. The pleadings of the appellant clearly shows that the appellant is not interested to live with his wife. The main contention of the appellant is that the respondent suffered from mental disorder. It is important to note that no evidence has been adduced by the appellant that the respondent was suffering from mental disorder since long or prior to their marriage. 12. It is not in dispute that the appellant and respondent have two children, first was born in the year 2006 and second was born in the year 2008 at the house of the appellant which proves that the appellant and respondent lived together till 2008. 13. On behalf of the respondent, Ex.P-1 has been filed, which is a marksheet of the respondent for post graduation degree in sociology of the year 2002. Respondent-wife stated that she is a degree holder from Mankunwar Bai College. Thereafter, she completed PGDCA. During her examination, no symptom of major mental disorder was shown in her behavior or conduct. Above facts also support the fact that she was capable to do any work or study as a normal person. 14. In our view, it cannot be said that the conduct of the respondent-wife had been such to inflict mental pain and suffering upon the appellant-husband as would make it impossible for him to live with the respondent-wife. The incident stated by the appellant are normal wear and tear of married life which can be repaired. 14. In our view, it cannot be said that the conduct of the respondent-wife had been such to inflict mental pain and suffering upon the appellant-husband as would make it impossible for him to live with the respondent-wife. The incident stated by the appellant are normal wear and tear of married life which can be repaired. May be the respondent was under depression or she had negative thoughts. 15. It is quite clear from the findings recorded by learned trial Court that the appellant-husband has failed to prove the alleged acts of the respondent causing mental cruelty upon him. The respondent had two children from the wedlock with the appellant during the year 2006 to 2008 which shows that the behavior of the respondent had been condoned by her husband. 16. During the trial, the respondent was found mentally capable to give evidence before the Court. The trial Court had opportunity to see her conduct and behavior though the respondent admitted that for sometime her mental condition was disturbed but her medical illness can be treated by medical science. 17. It is not established by the appellant that the mental disturbance of the respondent is not curable. In our conclusive view, if the respondent is under mental depression or under any medical illness, it is the duty of her husband to protect his wife and treat her mental condition by discharging of his matrimonial obligations. We do not find that the conduct of respondent leads to believe that she is not interested to settle in her matrimonial home. It apparently shows that the appellant is completely negligent on his part towards his wife. 18. Hindu marriage is a sacred and holy union of husband and wife by virtue of which the wife is completely transplanted in the household of her husband. To a Hindu wife her husband is her God and her life become one of the selfless service and profound dedication to her husband. She not only shares the life and love, but the joys and sorrows, the troubles and tribulation of her husband and becomes an integral part of her husband's life and activities. To a Hindu wife her husband is her God and her life become one of the selfless service and profound dedication to her husband. She not only shares the life and love, but the joys and sorrows, the troubles and tribulation of her husband and becomes an integral part of her husband's life and activities. Cole Brooke in his book “Digest of Hindu Law” Volume 11 quoted the Mahabharat at page 121 thus : “Where female are honoured, there the deities are pleased; but where they are unhonoured there all religious acts become fruitless.” This clearly illustrates the high position which is bestowed on Hindu women by the Shastric law. 19. We find that the appellant did not make any effort to live with respondent. He has forsaken the company of the respondent and thereby he has definitely declined to cohabit with her. This fact itself proved his intention not to cohabit with the respondent. Hence, learned trial Court has not committed any error in granting the decree of restitution of conjugal rights in favour of the respondentwife. Therefore, this appeal deserves to be dismissed. 20. Accordingly, this first appeal is dismissed. No order as to costs.