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2018 DIGILAW 448 (MP)

Gajendra Kumar Panth v. Rupali Singh Mourya

2018-05-02

ANJULI PALO, S.K.GANGELE

body2018
JUDGMENT ANJULI PALO, J. 1. This appeal has been filed by the husband/appellant under Section 19 of the Family Court Act, 1984 read with Section 28 of the Hindu Marriage Act, 1955 being aggrieved by the impugned judgment dated 19.5.2017 passed by Principal Judge, Family Court, Rewa in Civil Suit No. 107-A/2015, whereby the learned Family Court has dismissed the application under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights filed by the appellants. 2. It is not in dispute that the respondent is legally wedded wife of the appellant. Their marriage was solemnized on 19.1.2006 according to Hindu Rites and Ritual. One daughter was born due to their wedlock on 19.1.2010 namely Ku. Aditi. 3. The facts of the case in brief is that, after the marriage the respondent made pressure upon the appellant for better facilities. The appellant assured her to provide every facilities in future when he got a government job. On 15.8.2007 father of the respondent had expired and the respondent went to her parental house and returned back at her matrimonial house. In February, 2010, the appellant was appointed in the NCL, therefore, he started residing with the respondent at Bina. Her behaviour was not good with the appellant. On 3.7.2012, brother of the respondent took her at Rewa. Thereafter, the respondent is not agreed to reside with the appellant. The appellant wants to accompany her and his daughter, who was borne in the January, 2010. He sent a legal notice to the respondent. Even then she refused to reside with the appellant. Hence, the petition under Section 9 of the Hindu Marriage Act was filed for restitution of conjugal rights by the appellant against the respondent before the trial Court. 4. The respondent/wife denied the allegation and submitted that she had not made any quarrel with the appellant. The appellant was demanding a car in dowry, which was refused by her and her family members, therefore, she was tortured by the appellant and his family members. After birth a female child, the respondent was ill-treated by them. When the respondent was ill, the appellant had not provided any treatment to her. Hence, brother of the respondent had given a sum of Rs. 15,000/- to her for her treatment in the August, 2012. After abusing and assaulting the respondent, the appellant ousted his wife along with minor daughter. When the respondent was ill, the appellant had not provided any treatment to her. Hence, brother of the respondent had given a sum of Rs. 15,000/- to her for her treatment in the August, 2012. After abusing and assaulting the respondent, the appellant ousted his wife along with minor daughter. Therefore, she claimed the maintenance allowance from the appellant. The appellant malafidely filed the petition for restitution of conjugal rights to avoid their responsibility and to give the maintenance to his wife and daughter. Hence, the respondent has prayed to dismiss the petition. 5. Learned trial Court dismissed the petition filed by the appellant under Section 9 of the Hindu Marriage Act on the ground that he has failed to prove that the respondent without any sufficient or proper reason resided separately from the appellant. The trial Court further held that the appellant is himself in wrong side and he tortured his wife/respondent because she gave birth a female child. In the light of principles laid down in the cases of Chetandas Vs. Kamladevi, (2001) AIR SC 1709, Shailendra Koshthi Vs. Savita Koshthi, (2006) 4 MPHT 391 , Mamta Vs. Rajesh, (2014) AIR M.P. 158 and Milan Vs. Sunil, (2008) ILR(MP) 36. The petition has been dismissed by the trial Court with cost of Rs. 1,000/-. 6. The present appeal has been filed by husband/appellant on the ground that the impugned judgment is erroneous both on infact and in law and is liable to be set aside. Every facilities have been provided by the appellant to the respondent. Even then, the respondent refused to live with him without any reasonable ground. The appellant tried to bring back the respondent to her matrimonial home but he failed. The respondent is not willing to change her behaviour. Hence, a legal notice was served on her with polite manner. Learned trial Court has wrongly observed that the counsel of the appellant served the notice with bad indications. The respondent wanted to create pressure on him with cruel manner. A false complaint has been filed by the respondent against the appellant. Hence, trial Court has committed serious error while drawing presumption against the appellant. Therefore, the appellant has prayed to set aside the impugned judgment. 7. We have heard learned counsel for the parties at length. 8. The respondent wanted to create pressure on him with cruel manner. A false complaint has been filed by the respondent against the appellant. Hence, trial Court has committed serious error while drawing presumption against the appellant. Therefore, the appellant has prayed to set aside the impugned judgment. 7. We have heard learned counsel for the parties at length. 8. During arguments, learned counsel for the respondent urged that in Criminal Revision No. 1582/2017, after observing behaviour of the appellant, it was found that the respondent is residing separately from the appellant due to sufficient reason that, the appellant is physically assaulted the respondent for demand of dowry. He offenly consumed liquor. There are sufficient reasons for the respondent to reside separately from the appellant. Hence, the Single Bench of this Court dismissed the revision filed by the appellant. 9. Perused the record. 10. It is not in dispute that the appellant and the respondent are husband and wife. The respondent with her daughter is residing separately since 3.7.2012. Her marriage was solemnized on 19.1.2006. In cross-examination at para 11, the appellant denied that before sending the legal notice against the respondent/wife, he never tried to take her back. He further admitted that, since the year 2012, he did not deposit any amount in favour of his wife and his minor daughter for their maintenance or other expenses. In para 12, he admitted that on 3.3.2015, the respondent has filed a petition under Section 125 of the Cr.P.C. against him. Thereafter, a petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights has been filed by the appellant. It appears that this petition has been filed by the appellant to save himself from his liabilities of maintenance and case towards his wife and for his minor daughter with ulterior motive. 11. As per Yogendra Kumar Panth (PW-2), the respondent was demanding big luxury items and car from the appellant, which was impossible for the appellant. Hence, the respondent herself left the house of appellant. 12. As per the respondent, she was tortured by her husband and by her in-laws for non-fulfillment of demand of dowry. They did not want to give birth of their daughter at their house so they stopped to provide money to her for her treatment and medicines. Therefore, her brother Ravish had deposited a sum of Rs. 12. As per the respondent, she was tortured by her husband and by her in-laws for non-fulfillment of demand of dowry. They did not want to give birth of their daughter at their house so they stopped to provide money to her for her treatment and medicines. Therefore, her brother Ravish had deposited a sum of Rs. 15,000/- in her account after giving birth of girl child. The appellant and his family members taunted her for demand of money for the maintenance of her minor daughter. They compelled the respondent to leave their house. After consumed liquor, the appellant tortured his wife offenly. She tried to adjust with the appellant and lived with him but he was demanding a car from as a dowry her brother. He had beaten the respondent in the month of August, 2012. The appellant ousted the respondent from his house therefore, the respondent was waiting for reentry in the house of appellant but she failed. Her brother came at her house then, she left Sonbhadra and residing with her mother and brother at Bina. Thereafter, the appellant did not take care of his wife and daughter and she dependent upon her parents. 13. In cross-examination, the respondent specifically denied that she wanted to live with all luxury facilities in her matrimonial house. She also denied the allegation that she compelled the appellant to reside separately from his parents. Therefore, the appellant falsely made allegations against the respondent. As his own will, he resided separately in his parental house. The appellant himself destroyed his married life without any proper and just reason. 14. After considering the evidence on both side, it is clear that at last time, the appellant himself ousted the respondent from his house without any just and proper reason. It may be possible that the respondent wanted to live with some luxury facility but this fact has not been proved by the evidence of the appellant that, she wanted to exceed the limits and deliberately compelled to the appellant for it. She left her matrimonial house since the year 2012. If the appellant genuinely wants to accompany of his wife or his daughter, he can take step to return back them. We do not find that any attempt has been done by the appellant in this regard. Nor he paid any amount for the maintenance to them. She left her matrimonial house since the year 2012. If the appellant genuinely wants to accompany of his wife or his daughter, he can take step to return back them. We do not find that any attempt has been done by the appellant in this regard. Nor he paid any amount for the maintenance to them. We are in agreement with the opinion of learned trial Court that the appellant sent a legal notice with harsh manner to his wife to show her anger. 15. Explanation of Section 9 of the Hindu Marriage Act prescribes that - "Where a question arise whether there has been reasonable excuse for withdrawal from the society, the burden to prove reasonable excuse shall be on the person who has withdrawn from the society. Section 9 of the Hindu Marriage Act must be read with Section 23 of the Act which imposes on the Court the duty to enquire into and pass a decree inter alia for restitution of conjugal rights, after satisfying itself about certain matters, the petitioner must show that there is a bonafide desire to resume matrimonial cohabitation and to render the rights and duties of matrimonial rights. " 16. Section 9 of the Hindu Marriage Act must be read with Section 23 of the Act which imposes on the Court the duty to enquire into and pass a decree inter alia for restitution of conjugal rights, after satisfying itself about certain matters, the petitioner must show that there is a bonafide desire to resume matrimonial cohabitation and to render the rights and duties of matrimonial rights. 17. It would seem that conduct of a spouse which for one reason or another falls short of cruelty or any other matrimonial offence, would afford reasonable excuse for leaving or withdrawing from the society of the spouse and be a defence to suit for restitution under the present section. Whether one party has reasonable excuse for leaving the other or staying apart, must depend on whether the conduct complained of is of a grave and weighty character. The plea that there was reasonable excuse for the respondent to withdraw from the society of the petitioner, must in substance involve an inquiry into facts. Each case must depend on its own facts and circumstances and it is not possible to give an exhaustive statement of what may or may not constitute 'reasonable excuse'. The plea that there was reasonable excuse for the respondent to withdraw from the society of the petitioner, must in substance involve an inquiry into facts. Each case must depend on its own facts and circumstances and it is not possible to give an exhaustive statement of what may or may not constitute 'reasonable excuse'. The above principles were accepted and relief under the present section was not granted to the petitioner on the ground that the other spouse had withdrawn from the society of the petitioner for a reasonable excuse. 18. In case of Suman Singh vs. Sanjay Singh, (2017) 4 SCC 85 , it was held that few isolated incidents of long past and that too found to have been condoned due to compromising behavior of the parties cannot constitute an act of cruelty within the meaning of Section 13 (1)(ia) of the Hindu Marriage Act because both the exchange some verbal conversation which would not be sufficient to constitute cruelty unless it is further supported by incident of like nature. 19. The Hon'ble Supreme Court in case of Suman Singh further held that if the evidence establish that it was the husband who withdrew from the wife's company without any reasonable cause, wife is entitled for decree of restitution of conjugal rights. In that case, the Supreme Court further expressed as under : "We hope and trust that the parties would now realize their duties and obligations against each other as also would realize their joint obligations as mother and father towards their grown up daughters. Both should, therefore, give quite burial to their past deeds/acts and bitter experiences and start living together and see that their daughters are well settled in their respective lives. Such reunion, we feel, would be in the interest of all family members in the long run and will bring peace, harmony and happiness. We find that the respondent is working as a "Caretaker" in the Government Department (see Para 4 of his petition). He must, therefore, be the "Caretaker" of his own family that being his first obligation and at the same time attend to his Government duties to maintain his family. " 20. All the allegations of the appellant-husband and denial of the respondent-wife, likewise allegations of the respondent-wife and denial from the appellant-husband indicate that their dispute can be resolved only with their sincere efforts. " 20. All the allegations of the appellant-husband and denial of the respondent-wife, likewise allegations of the respondent-wife and denial from the appellant-husband indicate that their dispute can be resolved only with their sincere efforts. There are small issues between them after their marriage which needs to be addressed only by mutual understanding. It appears that the appellant's main grievance is that he was hurt by the behaviour of his in-laws. But we find no incident where the respondent-wife misbehaved with the appellant or her behaviour was cruel towards the appellant. 21. In view of the aforesaid discussion, we are of the conclusion that there is no ground in the appeal to interfere with the judgment. Accordingly, the appeal is dismissed.