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2022 DIGILAW 482 (CHH)

Neha Thakur W/o Durgesh Thakur v. Durgesh Thakur S/o Balmiki Thakur

2022-11-03

GOUTAM BHADURI, RADHAKISHAN AGRAWAL

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JUDGMENT : GOUTAM BHADURI, J. 1. Heard. 2. The present appeal is against the judgment and decree dated 26/07/2021 passed by the Family Court, Durg (C.G.) in Civil Suit No. 39A/2017 whereby a decree for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 (in short “the Act 1955”) was passed in favour of the husband. Therefore, the instant appeal by the wife. 3. The admitted facts are that marriage in between the parties took place on 24/12/2015. Thereafter, according to the husband, the wife stayed at her matrimonial home for some period of time but subsequently she went back to her parental home on the pretext that she had to prepare and appear in B.Ed. Examination. The husband also joined the wife at her parental home where they stayed for sometime and again came back to her matrimonial home. Meanwhile, the wife became pregnant and first abortion was carried out at the instance of the sister, parents, brother-in-law. While she was carrying the second pregnancy she was sent to her parental home and thereafter she has not returned. The husband alleged that without any lawful cause the wife has withdrawn the company of the husband and on that ground Section 9 application was filed. 4. Per contra, wife stated that she was subjected to torture for demand of dowry and cruelty. It was stated that since the husband was in the Police service/government job, the husband including the family members, all of them, treated the wife with cruelty for demand of dowry and Rs. 3 Lakh asked for. The wife further alleged the first pregnancy was terminated for the reason that she was severely beaten and was kicked on her abdomen. She further stated that while she was carrying second pregnancy, she was not given due care and even necessary nutritious food, which was required, was not given. Consequently, she had to come to her parental home and while coming because of her weakness, she got fainted. It is further stated that because of the demand of dowry and cruelty meted out to her, she filed a complaint with the Police for which a case under Section 498-A of IPC is registered against the husband which is pending. 5. Before the learned Family Court both the husband and wife examined themselves. It is further stated that because of the demand of dowry and cruelty meted out to her, she filed a complaint with the Police for which a case under Section 498-A of IPC is registered against the husband which is pending. 5. Before the learned Family Court both the husband and wife examined themselves. The learned Family Court after evaluating the facts and evidence decreed the suit in favour of the respondent husband. Hence, this appeal by the wife. 6. Learned Counsel for the appellant/wife would submit that case under Section 498-A of IPC is pending adjudication, therefore, there is sufficient ground for wife to stay apart. He further submits that even the case under the Domestic Violence Act is also pending which would go to show that reason for not in the company of the wife with the husband as she was forced to stay away. He further submits that an application under Section 125 of Cr.P.C. is also being filed for which huge arrears still remains. He further submits that as per law laid down by the Supreme Court in the matter of Justice K.S. Puttaswamy (Retd.) and Another vs. Union of India and Others, (2017) 10 SCC 1 , that the personal choice and privacy of a person is required to be protected and as an essential facet of dignity of human being. He submits that if the wife is being subjected to torture she cannot be forced under Section 9 to join the company of the husband and she has all the right of privacy to protect her to refrain to stay away from the company of the husband. Therefore, the order under Section 9 of the Hindu Marriage Act for restitution of conjugal rights is required to be set aside. 7. Per contra, learned Counsel for the respondent husband would submit that without any valid reason the wife withdrew the company of the husband. He submits that the analysis of statement of the husband and wife which are read together would show that there no sufficient reason still exists for the wife to stay away. He would submit that only on the flimsy ground the wife withdrew the company of the husband. He submits that the analysis of statement of the husband and wife which are read together would show that there no sufficient reason still exists for the wife to stay away. He would submit that only on the flimsy ground the wife withdrew the company of the husband. Therefore, the learned Family Court after evaluating the facts have come to a conclusion to pass a decree under Section 9 of the Hindu Marriage Act for restitution of conjugal rights, therefore, the order is well merited which do not call for any interference. 8. We have heard learned Counsel for the parties and perused the pleadings and evidence. 9. The pleadings and evidence would show that after marriage between the parties on 24/12/2015 the wife stayed for some time at her matrimonial home, thereafter she had to appear in an exam and came to her parental place where the husband also joined. Subsequently, after the examination she joined back her matrimonial home wherein she complained that she was subjected to torture for demand of dowry. Perusal of the statement of the husband shows that before filing the application under Section 9, the wife has filed a report with the Police, Durg, complaining the cruelty for demand of dowry and the case is still pending. Perusal of the statement of husband further shows that after the report was made, two counsellings took place but the fact would suggest that since the criminal case was filed subsequently, no result was the outcome of counseling. Likewise, in the statement of the wife, she maintained the stand that she was subjected to torture and pressure was created to fulfill the demand of money. She further stated that because of the fact the demand was not fulfilled, while she was carrying first pregnancy she was kicked at her abdomen which resulted into miscarriage. While in respect of the second pregnancy, he stated that she was subjected to torture for demand of dowry, as such she was forced to go to her parental place to save her life. 10. During the course of submission, on a query being made to the parties, it is submitted that the case under Section 498-A of IPC and Domestic Violence Act are still pending before the Judicial Magistrate, Durg. It is further stated that the charges have been framed in such criminal case and as a consequence the trail has commenced. 10. During the course of submission, on a query being made to the parties, it is submitted that the case under Section 498-A of IPC and Domestic Violence Act are still pending before the Judicial Magistrate, Durg. It is further stated that the charges have been framed in such criminal case and as a consequence the trail has commenced. Therefore, if prima facie, the Judicial Magistrate found the charges are required to be framed as per the statement of the wife and the other witness then until the case is adjudicated, in our considered view, erasing the allegation of cruelty at this stage would amount to pre-judge the entire issue. Facts may unfold the trial and as a consequence it may result into conviction or acquittal, but these facts cannot be pre-judged by this Court. Prima facie as on date the charges have been framed in a criminal trial, the presumption of cruelty would follow unless demolished in trial. Consequently, if the wife has withdrawn from the company of other whether it was a justifiable cause or not can be arrived at after conclusion of the trial. As of now, considering the pendency of criminal case, it would not be justifiable for the Court to press upon the appellant to join back to the company of the husband and if the cruelty really exists then it may have a serious repercussion to force the appellant wife to join the company of husband. It is a trite law that the act of the Court cannot harm or prejudice the right of any individual. In the backdrop of the fact that the criminal cases are pending against the husband under Section 498-A of IPC, we do not consider it proper to continue the order of restitution of conjugal rights. 11. In view of the foregoing discussions, the judgment and decree passed by the Court below is set aside. Accordingly, the appeal is allowed.