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2018 DIGILAW 471 (KER)

Sidheeque v. Haseena

2018-06-21

A.M.BABU, K.HARILAL

body2018
JUDGMENT : K. Harilal, J. The appellant is the petitioner in Original Petition No.901 of 2007 of the Family Court, Kozhikode. He is the husband of the respondent herein. The petitioner filed the aforesaid Original Petition, seeking a decree for restitution of conjugal rights. Parties are referred to as in the Original Petition. 2. According to the averments in the Original Petition, the marriage between the petitioner and the respondent was solemnized on 25.12.2005 as per Muslim religious rites and ceremonies and they lived together as husband and wife at the house of the petitioner and a child was born out of the said wedlock. After the marriage, the petitioner behaved very lovingly and affectionately. While so, she became pregnant and was taken to her house at the seventh month of pregnancy and thereafter she gave birth to the child. At the time of delivery, the petitioner met all expenses in connection with the delivery. After the delivery, the respondent and the child were taken to the house of the petitioner and the respondent lived there for two days. After two days, the respondent wanted to go to her house with the consent of the petitioner and the petitioner gave consent for the same and she went to her house with the child. Thereafter, she did not return so far and she is living separately from him, without any sufficient reason. The petitioner is desirous of resuming the marital relationship with the respondent. Even though he has made all his earnest efforts to resume cohabitation, the respondent refused to live with the petitioner in the matrimonial home. Though, he caused to send a lawyer’s notice requesting the respondent to come back and resume cohabitation with him in the matrimonial home, the respondent refused to receive the said letter and it was returned to him. Thus, the respondent abandoned the petitioner without any reasonable excuse. She totally neglected and deserted him. With the aforesaid averments, the petitioner prayed for a decree for restitution of conjugal rights. 3. The respondent filed a counter-statement, admitting the allegation that she is living separately from the petitioner after the delivery of the child. According to her, there are sufficient reasons for withdrawing from the society of the petitioner. She is living separately from the petitioner due to the ill-treatment of the petitioner, his mother, brother and sisters. 3. The respondent filed a counter-statement, admitting the allegation that she is living separately from the petitioner after the delivery of the child. According to her, there are sufficient reasons for withdrawing from the society of the petitioner. She is living separately from the petitioner due to the ill-treatment of the petitioner, his mother, brother and sisters. The petitioner and his mother behaved cruelly towards her. The petitioner’s mother and sisters harassed her on demand of more dowry. The respondent has received a lawyer’s notice issued by the petitioner demanding restitution of conjugal rights, as claimed by him. The petitioner, his mother, brother and sisters have made several attempts to kill her by pouring kerosene on her body. Since the respondent had no other way, she was constrained to live separately from the matrimonial home. She was harassed by the petitioner, his mother, his brother and sisters on demand of more dowry and gold ornaments. So also, they have propagated scandalous statements to defame the dignity and reputation of the respondent. She was assaulted physically and she was admitted and treated for the same in the Co-operative hospital. The petitioner, his mother and sisters declared that after the delivery she will be taken back to the matrimonial home, only if her parents give the rest of the gold ornaments and money. 4. On the aforesaid rival pleadings, both parties went to trial. The petitioner was examined as RW.1 and his sister was examined as RW.2 and Exts.B1 to B6 were marked. The respondent was examined as PW.1 and Ext.A1 was marked. On appreciation of the aforesaid evidence, the Family Court passed the impugned order, dismissing the Original Petition. 5. Heard the learned counsel for the appellant and the learned counsel for the respondent. 6. It is not disputed that the petitioner and the respondent lived together in the matrimonial home till the delivery of the child and after the delivery, she was taken back to the matrimonial home with the child. It is the case of the petitioner that after two days she went to her home with the consent of the petitioner and thereafter, she didn’t return till the filing of the petition. The aforesaid facts are not disputed by the respondent also. But, according to the respondent, she has reasonable excuse to withdraw from the society of the petitioner. It is the case of the petitioner that after two days she went to her home with the consent of the petitioner and thereafter, she didn’t return till the filing of the petition. The aforesaid facts are not disputed by the respondent also. But, according to the respondent, she has reasonable excuse to withdraw from the society of the petitioner. After considering the evidence on record, the Family Court lastly arrived at a finding that there are reasonable excuse for the withdrawal of the respondent from the society of the petitioner. 7. The respondent has averred that she was treated with cruelty and harassment by the petitioner, his mother, brother and sisters on demand of more gold ornaments in connection with the marriage. On demand of more gold ornaments, the petitioner and his aforesaid family members made attempts to kill her by pouring kerosene on her body. They made an attempt to abort pregnancy. Going by the pleadings, we are of the opinion that the pleadings are general and vague statements made evasively, without disclosing the particulars or details of the specific incidents, if any, amounting to ill-treatment and harassment. In cross-examination, she admitted that she does not know the date on which they made an attempt to kill her by pouring kerosene on her body and she does not remember the date on which the relatives made an attempt to kill the child in womb. She could not remember any particulars of those incidents. We are of the opinion that had it been true, certainly, she could have remembered the particulars of those incidents. 8. In cross-examination of PW.1, she herself stated that she is not willing to reside along with the brothers and sisters of the petitioner in the matrimonial home and she is ready to live with the petitioner, if he provides a separate residence for her. Though, allegations are made against the petitioner also in the pleadings, she abandoned those allegations against the husband in evidence and she accused the mother, brother and sister of the petitioner for ill-treating her. Though, she evasively made statements alleging such ill-treatments from the family members of the petitioner, those allegations are also made without disclosing the particulars. Though, allegations are made against the petitioner also in the pleadings, she abandoned those allegations against the husband in evidence and she accused the mother, brother and sister of the petitioner for ill-treating her. Though, she evasively made statements alleging such ill-treatments from the family members of the petitioner, those allegations are also made without disclosing the particulars. It is discernible from the evidence on record that she refused to live with the petitioner for the sole reason that she is unable to go with the relatives of the petitioner in the matrimonial home. But, in evidence of RW.2, the sister against whom the allegations were made was examined and it has come out in evidence that at the time of alleged harassment, she was residing separately. But, the said evidence of RW.2 was not challenged by the respondent. The evidence available on record is not sufficient to accept the case of the respondent that the family members of the petitioner treated her with cruelty and harassed her on demand of more gold ornaments and the petitioner has sufficient financial capacity to provide a separate residence. Merely on the reason that the respondent disliked the family members of the petitioner, she cannot withdraw from the society of the husband. After analysing the evidence on record, the learned Family Court Judge also observed that there is no serious dispute between the petitioner and the respondent and the respondent has also stated that there is no serious dispute between them and the case of the respondent that she is not willing to go to the house of RW.1. Moreover, she herself disclosed her mind by admitting that she is ready and willing to go to RW.1, if he will arrange another house. 10. Is the withdrawal of the wife from the society of the husband, on demand of separate residence, a reasonable excuse to deny restitution of conjugal rights to the husband? The love and affection between family members, the parents, grand parents and siblings is the bondage on which the concept of family rests and the family system is the basis of the Indian society. The love and affection between family members, the parents, grand parents and siblings is the bondage on which the concept of family rests and the family system is the basis of the Indian society. In the above view, the withdrawal of the wife from the society of the husband, on demand of separate residence to avoid members of the husband’s family, is not a reasonable cause, unless it is proved that the family members in the matrimonial home had treated her with cruelty. The mere reason that the wife does not like the parents or siblings of the husband is not a reasonable excuse for the withdrawal from the society of the husband, falling under S.9 of the Hindu Marriage Act, 1955. 11. In the above view, we find that though the Family Court itself has observed that there is no serious dispute between the petitioner and the respondent, the Family Court turned round and rejected the claim for restitution of conjugal rights, without sufficient reasons. Consequently, the order passed by the Family Court will stand set aside and the Original Petition No.901 of 2007 will stand allowed. This Mat. Appeal is allowed accordingly.