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Teksai Rajwade vs Leelavati 8 Wp/354/2002 Director … on 17 April, 2018

NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR
First Appeal (M) No. 187 of 2015

• Teksai Rajwade, son of Balsai aged about 38 years, Caste – Rajwar,
Occupation – Cultivator, resident of village – Girvarganj, Police Station
Tahsil – Surajpur, District – Surajpur (C.G.)
—- Appellant
Versus
• Leelavati, wife of Teksai Rajwade, aged about 35 years, Caste – Rajwar,
Occupation – Housewife, resident of village – Girvarganj, at present village
– Badkapara, Surajpur, Police Station Tahsil – surajpur, District –
Surajpur (C.G.)
—- Respondent
———————————————————————————————————-

For Appellant : Shri D. N. Prajapati, Advocate
For Respondent : None appears

———————————————————————————————————–

SB : Hon’ble Shri Justice Sharad Kumar Gupta
17.04.2018

1) Challenge in this appeal is levied to the judgment and decree dated

14.10.2015 of the District Judge, Surajpur, District Bilaspur passed

in Civil Suit No.40-A/2014, whereby and whereunder he dismissed

the suit of the Appellant filed under Section 9 of the Hindu Marriage

Act, 1955 (hereinafter referred to as ‘the Act, 1955’).

2) This is admitted by the Respondent that 20-22 years ago from

18.09.2014 marriage of the parties solemnized under the Act, 1955

and customary rights and rituals, in wedlock, four children have

born, namely, Ku.Babita, Ku.Deepmala, Arjun and Ku.Anju.

Ku.Babita, Ku. Deepmala and Arjun are living with the Appellant and

Ku.Anju is living with the Respondent, Respondent has filed an

application under Section 125 Cr.P.C. for obtaining maintenance of

herself and daughter Ku.Anju, the Appellant had kept another
FAM 187 of 2015

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woman, Respondent is living in her maternal house in village

Badkapara, Surajpur.

3) In brief, Appellant’s case is that the Respondent has abandoned his

house and living in her maternal house, though he is willing to keep

her along with him.

4) In brief, Respondent’s case is that the Appellant is habitual drunker

and is addicted to narcotic drugs. He was harassing her saying that

she is dark complex and ousted her after beating. The Appellant

also had contracted second marriage with Belabai and they are

living as husband and wife.

5) After completion of the trial, the trial Court pronounced the judgment

and decree as aforesaid. Being aggrieved, the Appellant preferred

this appeal.

6) Shri D. N. Prajapati, learned counsel for the Appellant, argued that

the Respondent had left the matrimonial house without any just and

sufficient reason. Thus, the aforesaid judgment and decree may be

set aside.

7) The Respondent has not appeared today nor she is represented.

She has refused to take notice.

Points for determination :-

The following points are for determination in this case :-

(1) Whether the Respondent has withdrawn the society of the

Appellant without any reasonable cause ?

FAM 187 of 2015

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(2) Whether the Appellant is entitled to get the decree of

restitution of conjugal rights against the Respondent ?

(3) Relief and costs.

Point for determination No.1 – Findings with reasons :-

8) The trial Court did not frame the issue regarding withdrawal of the

society without any reasonable excuse by the respondent, for

determination, though it ought to have been done by the trial Court.

The evidence available on record shows that the Appellant has

adduced evidence regarding this point for determination and the

Respondent had followed the opportunity to adduce evidence

regarding this point for determination. The evidence available on

record is sufficient to enable the Court to pronounce the judgment.

Non-framing of the issue regarding this point for determination does

not cause any prejudice to either of the parties. Thus, looking to the

provisions of Order 41 Rule 24 of the Civil Procedure Code, 1908,

this Court finds that it may pronounce the judgment in this appeal.

9) A.W.-1, Teksai, A.W.-2, Lakhan Ram in paragraph 2 of their

evidence given on oath submitted that Respondent has deserted the

Appellant without any reasonable cause.

10) In the matter of P. Rajeshkumar Bagmar vs. Swathi Rajesh

Kumar Bagmar {CRP (PD) 3006 of 2007}, in para- 10, Hon’ble

Madras High Court has held as under :-

“when either of the spouse, without any reasonable
cause withdrawn from the society of the other, the
FAM 187 of 2015

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aggrieved party may apply by petition for restitution of
conjugal rights and the Court on being satisfied of the
truth of the statements made in such petition and that
there is no legal ground why the application should not
be granted may decree restitution of conjugal rights
accordingly. The explanation to the said section
speaks that where a question arises whether there has
been reasonable excuse for withdrawal from the
society, the burden of proving reasonable excuse shall
be on the person who has withdrawn from the society.

The explanation means that the spouse alleges
reasonable excuse has to prove it. I endorse the view
expressed by the learned single judge in the case
reported in (Smt. Jyothi Pai vs. P.N. Pratap Kumar Pai)
AIR 1987 Karnataka 241 that explanation to Section 9
does not make any change and that initial burden to
prove the allegation on the basis of which restitution of
conjugal rights is sought is on the person who comes
to the Court. In this case, the petitioner, who
approached the Court for a judgment and decree in his
favour on the assertion that the respondent had
withdrawn from his society without any reasonable
excuse. The burden of proof in the proceedings lies on
the petitioner to prove those averments made by him
to get a decree in his favour. Hence, the petitioner who
alleges withdrawal without reasonable cause failed to
lead evidence, he may not be in a position to satisfy
the Court regarding the truth in the pleadings, hence,
he has to lead evidence, then the burden will be shifted
to the respondent to establish reasonable excuse.
Even when the respondent made counter claim under
Section 23-A of the Hindu Marriage Act, it does not
make any change in the position of law.”

FAM 187 of 2015

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11) A.W.-1 Teksai, A.W.-2 Lakhan Ram say in paragraph 4 during their

cross-examination that this is true that the Appellant has kept a

woman named Belabai as wife.

12) After appreciation of the evidence discussed herein before, looking

to the appellant’s case, this Court finds that keeping another woman

Belabai is just and sufficient ground for the Respondent to live

separately from the Appellant.

13) After the appreciation of the evidence discussed here before and

looking to the judicial precedent, laid down by the Hon’ble Madras

High Court in P Rajeshkumar (supra) case, this Court finds that the

Appellant failed to prove that the Respondent has withdrawn from

his society without reasonable excuse. Thus, this Court decides

point for determination No.1 accordingly.

Point for determination No.2 – Findings with reasons :-

14) This has been earlier decided that the Appellant failed to prove that

the Respondent has withdrawn his society without reasonable

excuse, thus the Appellant is not entitled to get the decree for

restitution of the conjugal rights against the Respondent. Thus, this

Court decides point for determination No.2 accordingly.

Point for determination No.3 – Findings with reasons :-

15) After complete appreciation of the evidence discussed herein

before, this Court finds that there is no substance in this appeal.

Thus, the impugned judgment and decree of the trial Court are
FAM 187 of 2015

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hereby affirmed as to aforesaid extent. The appeal deserves to be

and is hereby dismissed.

16) Appellant shall bear his own costs as well as costs of the

Respondent also.

17) Decree be drawn up accordingly.

Sd/-

(Sharad Kumar Gupta)
JUDGE

padma

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