Research › Search › Judgment

Jharkhand High Court · body

2018 DIGILAW 652 (JHR)

Hopna Hansda v. Dhonmuni Tudu

2018-03-19

APARESH KUMAR SINGH, RATNAKER BHENGRA

body2018
JUDGMENT 1. Heard learned counsel for the appellant. 2. Appellant is the husband aggrieved with the dismissal of the Title (Matrimonial) Suit No. 23/2009 seeking decree of restitution of conjugal rights under Section 9 of the Hindu Marriage Act. 3. As per the case of the plaintiff, marriage between the parties took place 6 years before the institution of the suit, according to the customary law of santhals and both were leading a conjugal life. A female child was born out of their wedlock, who is aged about 5 years. However, as per the plaintiff, defendant began to pressurize him to live separate from his family members and also deposit Rs.30,000/- in her name in a Bank. The defendant thereafter went to her ''Naihar'' as the plaintiff could not accede to the demand. Thereafter, the defendant has flatly refused to come to her matrimonial house despite several attempts made by the plaintiff. Suit has, therefore, been filed by the plaintiff for a decree of restitution of conjugal rights , as the defendant has been living separately without any reasonable cause. Defendant appeared in the suit, but, did not file any written statement. Plaintiff examined 5 witnesses and defendant examined herself as DW-1. 4. Learned Family Court analyzed evidence on record and rendered a finding against the plaintiff-husband in the following manner: Plaintiff in spite of having his own house has kept the defendant in the house of his brother Shiv Hansda. Plaintiff has four brothers and all were living separately in different villages. Therefore, it was surprising that the plaintiff had kept his wife in the house of his brother, not in his house. It shows the intent of the plaintiff. Defendant had filed a criminal case against the plaintiff under Section 498-A of the Indian Penal Code alleging cruelty and demand of dowry within 7 years of the marriage. She had also filed a maintenance case. In her deposition, she had also alleged that the plaintiff was having illegal relationship with his sister-in-law. Learned Family Court, therefore, came to the considered opinion that the plaintiff had failed to establish his case for a decree of restitution of conjugal rights and the suit was, accordingly, dismissed. 5. She had also filed a maintenance case. In her deposition, she had also alleged that the plaintiff was having illegal relationship with his sister-in-law. Learned Family Court, therefore, came to the considered opinion that the plaintiff had failed to establish his case for a decree of restitution of conjugal rights and the suit was, accordingly, dismissed. 5. Learned counsel for the appellant has questioned the findings asserting that mere filing of a criminal case, under Section 498-A of the Indian Penal Code, does not amount to give a reasonable cause to the defendant to live separately. She has also been getting maintenance in terms of the order passed in the maintenance case. There are no other reasonable cause for the defendant to refuse to cohabit with the plaintiff. However, parties have been living separately for more than 9-10 years by now. No other evidence has been adduced by the plaintiff to establish the allegation of illicit relationship of the plaintiff with his sister-in-law or regarding demand of dowry or cruelty in marriage. The appeal may, therefore, be allowed. 6. No one appears on behalf of respondent-wife today though she has entered her appearance through a lawyer. 7. We have considered the submissions of the learned counsel for the appellant and also gone through the impugned judgment. 8. On perusal of the impugned judgment and the findings rendered by the learned Family Court, we find that the defendant/ respondent-wife had been compelled to file a criminal case under Section 498-A of the Indian Penal Code alleging cruelty and demand of dowry within 7 years of the marriage. This in itself was a reasonable cause for the defendant to resist the prayer of the husband for restitution of conjugal rights. The criminal case, filed under Section 498-A of the Indian Penal Code, is still pending. Therefore, no opinion can be expressed either way on the veracity of the allegations of torture or demand of dowry in this appeal. 9. In such circumstances, we do not find any error in the impugned judgment, which calls interference in appeal. 10. Accordingly, the appeal stands dismissed.