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IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
Goutam Bhaduri, Deepak Kumar Tiwari, JJ.
Kishor Kumar S/o Shri. Vishnu Singh Verma - Appellant
Versus
Smt. Maya Devi W/o Shri Kishor Kumar - Respondent
FAM No. 93 of 2016
Decided On : 26-07-2022
Restitution of Conjugal Rights - Hindu Marriage Act, 1955 - Section 9, Special Marriage Act, 1954 - Section 13 - The court allowed the appeal and set aside the judgment and decree of the lower court. The suit filed by the respondent-wife under Section 9 of the Hindu Marriage Act, 1955 was dismissed.
Fact of the Case:
The respondent filed a civil suit for Restitution of Conjugal Rights under Section 9 of the Hindu Marriage Act, 1955, stating that the appellant had withdrawn from the society without reasonable excuse. The appellant claimed that the respondent had converted to Islam and married another man, providing evidence of a marriage certificate and letters received raising doubts about the respondent's character.
Finding of the Court:
The court found that the conduct of the respondent-wife provided sufficient grounds for the appellant to withdraw from the society, and the appellant successfully established his defense in the suit. The court concluded that the findings of the lower court were perverse and not sustainable, setting aside the judgment and decree and dismissing the suit filed by the respondent-wife.
Issues: The issues revolved around the withdrawal from the society without reasonable excuse, the authenticity of the marriage certificate, and the conduct of the respondent-wife.
Ratio Decidendi: The court held that the conduct of the respondent-wife provided sufficient grounds for the appellant to withdraw from the society, and the appellant successfully established his defense in the suit.
Final Decision: The appeal was allowed, the impugned judgment was set aside, and the suit filed by the respondent-wife under Section 9 of the Hindu Marriage Act, 1955 was dismissed.
Case Details: Appeal under Section 19(1) of the Family Courts Act, 1984 read with Section 28 of the Hindu Marriage Act, 1955 against judgment dated 12.2.2016 in Civil Suit No.226-A/2014 by the 3rd Additional Principal Judge, Family Court, Durg, decreeing respondent-wife's suit under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights. [10000098550001]
Marriage and Separation: Marriage solemnized on 5.5.2001 between appellant (Kishor Kumar) and respondent (Smt. Maya Devi) at Village Junwani, Tehsil Gunderdehi, District Durg; parties living separately. [10000098550001][10000098550002]
Respondent's Claim: Respondent filed suit on 19.6.2003 alleging appellant withdrew from society without reasonable excuse; after one month of marriage, respondent went to parental home to complete B.Sc., returned after exams on 6.5.2002; anonymous letters raised character doubts, leading appellant to refuse cohabitation. [10000098550001][10000098550002]
Appellant's Defense: Appellant admitted marriage but claimed respondent converted to Islam, became Shabnam Nisha, and married Saiyyad Zuber; learned of this post-6.5.2002 when bringing her home; suppressed facts by respondent and her father. [10000098550002]
Evidence Presented: Respondent examined AW-1 to AW-4; appellant examined NAW-1 to NAW-5 (including Saiyyad Zuber as NAW-2, handwriting expert NAW-3). Lower court allowed respondent's suit. [10000098550003]
Appellant's Evidence on Marriage: Marriage certificate (Ex.-D/1, Ex.-D/10) under Special Marriage Act, 1954 (Case No.157/01) between respondent (Maya Devi @ Shabnam Nisha) and Saiyyad Zuber on 20.12.2001, conclusive under Section 13; affidavits (Ex.-D/14, D/15), photos (Ex.-D/11), marksheets (Ex.-D/12, D/13); Khulanama Talaq (Ex.-D/18); anonymous letters (Ex.-D/3 to D/6). [10000098550005][10000098550011][10000098550015][10000098550016]
Respondent's Response: Denied conversion or marriage to Saiyyad Zuber; challenged certificate authenticity; anonymous letters sent by unknowns, even pre-marriage; Saiyyad Zuber was her tutor. [10000098550006]
Section 9 HMA Overview: Court may decree restitution if spouse withdrew without reasonable excuse; burden on withdrawer to prove reasonable excuse. [10000098550008][10000098550010]
Appellant's Testimony: Respondent stayed one month post-marriage, then studied for a year; brought her home 6.5.2002; verified letters, obtained marriage certificate; social meeting where respondent and father admitted marriage. [10000098550011][10000098550012]
Supporting Witnesses for Appellant: NAW-5 (Gulab Ram Deshmukh, society executive) and NAW-4 (appellant's father) confirmed social meeting admission of respondent's marriage post-conversion. [10000098550013]
Respondent's Cross-Examination: AW-1 denied marriage proceedings/photos (later called look-alike); AW-2 (father) admitted photo was daughter's, Saiyyad Zuber's involvement in counseling, his fleeing after 6 months, no action against him, no police progress on Section 498A complaint. [10000098550014]
Saiyyad Zuber's Testimony: Married respondent 20.11.2001 (Nikahnama Ex.-D/9), unaware of her prior marriage; registered marriage at her insistence (Ex.-D/10); cohabited 5 days; Khulanama Talaq 18.7.2002 (Ex.-D/18). [10000098550015]
Court's Analysis of Evidence: Anonymous letters verified leading to discovery of secret second marriage; social meeting, police inaction, proved connections; marriage certificate conclusive evidence. [10000098550016][10000098550017]
Legal Effect of Certificate: Under Section 13 Special Marriage Act, certificate conclusive proof of marriage formalities. [10000098550005][10000098550017]
Conversion and Second Marriage: Conversion does not dissolve Hindu marriage; provides ground for divorce under Section 13 HMA; second marriage void under Sections 11, 17 HMA and Section 43 Special Marriage Act, offence under IPC Sections 494/495. [10000098550019] (!) (!) (!)
Finding on Reasonable Excuse: Respondent's conduct (conversion, second marriage) sufficient reasonable excuse for appellant's withdrawal; appellant established defense. Lower court findings perverse. [10000098550020][10000098550021]
Final Decision: Appeal allowed; impugned judgment set aside; respondent's Section 9 suit dismissed; parties bear own costs. [10000098550022][10000098550023][10000098550024]
JUDGMENT :
Deepak Kumar Tiwari, J.
1. This Appeal has been preferred under Section 19(1) of the Family Courts Act, 1984 read with Section 28 of the Hindu Marriage Act, 1955 against the judgment dated 12.2.2016 passed by the 3rd Additional Principal Judge, Family Court, Durg District Durg in Civil Suit No.226- A/2014, whereby the suit of the respondent filed under Section 9 of the Hindu Marriage Act, 1955 for Restitution of Conjugal Rights has been decreed.
2. Indisputably, the marriage between the appellant and the respondent was solemnized on 5.5.2001 at Village Junwani, Tehsil Gunderdehi, District Durg and both the parties are living separately. The respondent herein had filed a civil suit for Restitution of Conjugal Rights under Section 9 of the Hindu Marriage Act, 1955, on 19.6.2003 stating that marriage between the appellant and the respondent was solemnized according to Hindu custom, and at the time of marriage, the appellant and the respondents were Hindu. The respondent has already passed B.Sc. 2nd Year Exam and on the insistence of the appellant, the respondent agreed to complete her graduation as a regular student, and for the said purpose, the appellant left the respondent to her parental house after one month of the marriage. The respondent appeared in the B.Sc. Final Year Exam on 27.4.2002. Thereafter on 6.5.2002, Vidaai ceremony (Bride’s Farewell) was organized and the respondent was sent with the appellant. A letter was sent by the unknown person by post to her in-laws’ house raising false allegations on her character, so that a doubt could be created in the mind of the appellant. Likewise, similar letter was sent to the respondent’s parents. As a result, the appellant refused to stay with the respondent and left the respondent to her parents’ house. Earlier also, the appellant had received an anonymous letter doubting his wife’s (respondent) character and thereafter the appellant and the respondent did not believe the contents of the said anonymous letter and the appellant assured the respondent about the said letter that there was no doubt in his mind. On 6.5.2002, the appellant brought the respondent to his village. However, again on 8.5.2002 and 10.5.2002, the appellant received anonymous letters and refused to live with the respondent. In this way, the respondent, without any reason, is being ignored by the appellant and he refused to live with the respondent.
3. The appellant had filed a written statement admitting the marriage with the respondent on 5.5.2001. The appellant denied the rest of the plaint averments. It was also pleaded that the respondent has converted into Islam religion and had become Shabnam Nisha. She had married with one Saiyyad Zuber, therefore, she is no longer a wife of the appellant. When the appellant came to know that the respondent has converted into Muslim religion and married with the said Saiyyad Zuber, the appellant started living separate. On 6.5.2002, the appellant was not knowing this fact and, therefore, he brought her to his home. The respondent and her father deliberately and fraudulently suppressed the above facts. So the respondent is not entitled for Restitution of Conjugal Rights.
4. On the basis of averments of the parties, issues were framed and opportunity of hearing was afforded to the parties. Respondent Smt. Maya Devi has examined herself as AW-1, her father Kamal Prasad Deshmukh as AW-2, Mohd. Tauhid Alam Ashrafi as AW-3 & Ramesh Kumar Deshmukh as AW-4 whereas the appellant Kishor Kumar has examined himself as NAW-1, Saiyyed Zuber as NAW-2, Kumari Sunanda Dhenge as NAW-3, a handwriting expert; Shri Vishnu Singh Verma as NAW-4, father of the appellant and Shri Gulab Ram Deshmukh as NAW-5, executive member of Dilliwar Kurmi Kshatriya Samaj. By the impugned judgment, suit of the respondent was allowed.
5. We have heard learned counsel for the parties at length and perused the impugned judgment as also the record of the Court below.
6. Learned counsel for the appellant
The conduct of a spouse can provide sufficient grounds for the other spouse to withdraw from the society, as per Section 9 of the Hindu Marriage Act, 1955.
The right to restitution of conjugal rights under the Special Marriage Act is contingent upon proving a spouse's withdrawal from marital society without reasonable cause, weighing the evidence of ill....
Restitution of conjugal rights – Remedy of restitution of conjugal rights is a positive remedy that requires both parties to live together and cohabit – Rights and duties arising out of marriage are ....
Restitution of conjugal rights – If photographs are available, they require a non-biased approach for their consideration.
Restitution decree under Section 9 HMA denied as wife failed to prove husband's withdrawal without reasonable excuse; acquittal in cruelty case and unreliable evidence establish justification.
The burden of proof in restitution of conjugal rights lies with the withdrawing spouse to show reasonable cause for separation; the court affirms joint responsibility in marriage.
Restitution of conjugal rights – Where marriage itself is not proved, decree for restitution of conjugal rights cannot be sustained.
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