Smt.Santoshi Belwanshi vs Kop Singh on 8 February, 2018

1 F.A. No.656/2005

HIGH COURT OF MADHYA PRADESH AT JABALPUR

First Appeal No.656/2005

Smt. Santoshi Belwanshi

VERSUS

Kop Singh

Present : Hon’ble Shri Justice S.K. Gangele, Judge
Hon’ble Smt. Justice Anjuli Palo, Judge
———————————————————————————–
Shri Sanjay Sharma, learned counsel for the appellant.
None present for the respondent.

Whether approved for reporting (Yes/No)

JUDGMENT

(08/02/2018)

Per : Smt. Anjuli Palo, J.:-

This appeal has been filed by the appellant-wife against the

judgment and decree dated 13.05.2005 passed by Additional

District Judge, Lakhnadaun, District Seoni in C.S. No.14-A/04

whereby the application filed by the respondent-husband under

Section 9 of the Hindu Marriage Act for restitution of conjugal rights

has been allowed.

2. It is not in dispute that the appellant and respondent are

husband and wife. Their marriage was solemnized on 09.05.1997

according to Hindu religion and rites. They have a daughter and a

son. Since 20.02.2004, they are living separately.

3. In brief, the case of the respondent is that the appellant went

to her maternal home to meet her relatives, but she did not return
2 F.A. No.656/2005

back. Thereafter, the appellant-wife refused to live together with the

respondent-husband. After so many efforts, the respondent-

husband failed to bring her to the matrimonial house. Therefore,

respondent-husband filed a case under Section 9 of the Hindu

Marriage Act for restitution of conjugal rights against the appellant-

wife. The appellant-wife denied the allegations made by her

husband and submitted that the respondent/husband used to beat

her for demand of dowry. Then she filed an application under

Section 125 of Cr.P.C. against him before the Court of Judicial

Magistrate First Class, Balaghat. Hence, the respondent-husband

filed the said application.

4. Learned trial Court considered the evidence of both the

parties and found that the appellant was residing separately from

the respondent-husband without any proper reason. Therefore, a

decree under Section 9 of the Hindu Marriage Act for restitution of

conjugal rights has been passed against the appellant.

5. The appellant challenged the aforesaid findings on the

grounds that learned Court below ought to have considered that

there is sufficient, reasonable and plausible cause with the appellant

to live separately because her life may be endangered at the hands

of the respondent. The respondent used to beat her in cruel manner

due to suspicion of her character. Appellant filed an application

under Section 125 of Cr.P.C against the respondent and to counter

the case just to save himself, respondent filed the application under
3 F.A. No.656/2005

Section 9 of the Hindu Marriage Act with an ulterior motive. It

deserves to be dismissed.

6. We have heard learned counsel for the appellant.

7. The case is pending since 2005. So many opportunities were

granted in favour of the parties to arguing the matter. Record of the

case indicates that the respondent is represented by his counsel. On

15.03.2016, it was informed that the respondent has contracted

second marriage and is now living with his second wife. Therefore,

it was directed to bring the documents on record along with

affidavit of the appellant and it was also directed that appellant and

respondent remain present before this Court on 26.04.2016, but the

direction was not complied by the respondent. Therefore, on

26.04.2016, case was fixed for final hearing. It seems that by the

passage of time, respondent has lost interest in prosecuting the

case, hence, the matter is considered on its merit.

8. In compliance of the order dated 15.03.2016, the appellant

filed the copy of order-sheet dated 22.07.2009 of Court of C.J.M.,

Balaghat. Istgasa put up by the Police Station Kotwali, Balaghat

against the respondent for offence under Section 494/34 of the IPC

with the copy of application under Section 163 of Cr.P.C. filed by

the appellant against the respondent along with her affidavit dated

15.03.2016, which was unchallenged.

9. The enquiry report submitted by the Police Station Kotwali,

Balaghat established that the respondent performed second

marriage on 12.01.2009 with Sharda Bai. Sharda Bai was residing
4 F.A. No.656/2005

with the respondent/husband as his wife. In the absence of the

counter affidavit and reply from the respondent side, the aforesaid

documents cannot be ignored.

10. The second illegal marriage of the husband itself is a proper

ground to refuse to live with the husband.

11. Learned trial Court presumed that in the relationship of

appellant and respondent role of brother-in-law of the appellant is

very important. The trial Court has also found that the appellant

was residing with her brother-in-law and, therefore, the respondent

did not like it. Therefore, decree of restitution of conjugal rights has

been granted in favour of the respondent.

12. On the other hand, the appellant submitted that the

respondent took a contract at Bamhanwada and was stayed there

for about 2-3 months. He did not come back to his home. He was in

the habit of beating the appellant regularly. He also ignored his

family and threatened her to perform second marriage. Therefore,

she was residing with her brother and brother-in-law for sometime.

She also deposed that she received a notice from her

husband/respondent to come back to her matrimonial house. Then

she replied and informed that if the respondent himself would come

to take her then, she will return back to her matrimonial home. We

do not find that the respondent has made any effort from his side.

13. The respondent admitted that he did not proceed against

brother-in-law of the appellant with regard to displeasure of the

respondent about staying of the appellant with her brother-in-law.
5 F.A. No.656/2005

He stated in his chief-examination that the appellant went to

Balaghat (Place of Rajendra her brother-in-law) because her mother

was serious and admitted in the hospital at Balaghat. It appears

that due to some confusion with regard to character of appellant,

he teased his wife without any sufficient reason. The respondent

has also performed second marriage with another lady Sharada Bai,

therefore, the appellant cannot be compelled to reside with her

husband and performed her conjugal duties towards the

respondent.

14. We are of the considered view that the trial Court has

wrongly granted the decree of restitution of conjugal rights under

Section 9 of the Hindu Marriage Act in favour of the respondent.

Hence, appeal filed by the appellant is allowed. The impugned order

and decree is set aside.

15. No order as to costs.

(S.K. GANGELE) (SMT. ANJULI PALO)
JUDGE JUDGE
RJ/pn

Digitally signed by RAJESH
KUMAR JYOTISHI
Date: 2018.02.08 17:58:32 +05’30’

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