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Gajendra Kumar Panth vs Smt. Rupali Singh Mourya on 2 May, 2018

HIGH COURT OF MADHYA PRADESH JABALPUR

F. A. No.476/2017

Gajendra Kumar Panth

Vs.

Smt. Rupali Singh Mourya

———————————————————————————–
Present : Hon’ble Mr. Justice S.K. Gangele, Judge
Hon’ble Smt. Justice Anjuli Palo, Judge
———————————————————————————–
Name of counsel for the parties:
Ms. Aparna Singh, counsel for the appellant.
Shri Krishna Pratap Singh, counsel for the respondent.
———————————————————————————–

JUDGMENT

(02.05.2018)
Per : Smt. Anjuli Palo, J.

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
2 F.A. No.476/2017

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.

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
3 F.A. No.476/2017

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, AIR 2001 SC 1709, Shailendra Koshthi

Vs. Savita Koshthi, 2006 (4) MPHT 391, Mamta Vs. Rajesh, AIR

2014 (MP) 158 and Milan Vs. Sunil, ILR (2008) 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. During arguments, learned counsel for the respondent urged
4 F.A. No.476/2017

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.

5 F.A. No.476/2017

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 re-

entry 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
6 F.A. No.476/2017

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. 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
7 F.A. No.476/2017

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 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 (supra)

further held that if the evidence establish that it was the husband who
8 F.A. No.476/2017

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. 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 inlaws. But we find no incident where the respondent-wife

misbehaved with the appellant or her behaviour was cruel towards the

appellant.

9 F.A. No.476/2017

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.

(S.K. Gangele) (Smt. Anjuli Palo)
Judge Judge
pn

Digitally signed by
PANKAJ NAGLE
Date: 2018.05.03
10:55:21 +05’30’

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