A wife cannot be compelled to join the matrimonial company of her husband if she has been subjected to cruelty and maltreatment by him.

G.R. Moolchandani, J.

Appellant Smt. Gulnaz has assailed findings of court below passed by Family Court, Tonk on 21.6.2013 in Civil Suit No. 9/2013 (75/2009), whereby Family Court, Tonk has decreed the petition for restitution of conjugal rights filed by the respondent.

2. Heard rival submissions, learned counsel for the petitioner has contended that appellant was maltreated and beaten by her respondent husband and was ousted from the house and compelled to seek shelter in her parental house alongwith two small children, appellant has launched action against her respondent husband and a case u/s 498A coupled with sec. 406 of IPC is pending before the Court of Chief Judicial Magistrate, Tonk. Respondent has got an unpleasant temperament, he has given several beatings and abuses to the appellant severally, so the appellant cannot be compelled to join the matrimonial company of her husband, the court below, ignoring the evidence, has passed the judgment impugned, which is not sustainable in the eye of law, so it be quashed.

3. Learned counsel for the respondent Jafarullah has argued that behavior of the appellant is not amicable, she has falsely lodged alleged FIR against the respondent and a delay of six months is there in lodging the alleged FIR, which discloses that appellant has put in motion unlawful proceedings falsely, respondent is prepared to keep and maintain her alongwith his children, there is no infirmity in the findings of the court below, so the appeal be dismissed.

4. Heard both the sides and perused the record and examined the judgment impugned.

5. Perusal of record shows that appellant/non-petitioner has refuted the allegations of desertion and has categorically pleaded that her husband Jafarullah had given beatings to appellant Gulnaz severally and demanded dowry and also passed sarcastic taunts by alleging to bring less dowry and demanded money alongwith motorcycle, tv, fridge, washing machine and abandoned the appellant to her parental house at tonk and did not render necessary maintenance money and amenities to the appellant and her children, it has also pleaded that while on 19.11.2007, the appellant was given thrashing, she lodged a report with Mahila thana, Gandhinagar, Jaipur, her medical examination was also conducted and on 20.11.2007 on intervention of family members, a compromise was made, while the respondent executed a compromise and assured that he will not repeat atrocity and will also not demand dowry but after one month to the compromise, respondent again gave severe beatings to the appellant and left her alongwith her minor children at the house of her parents at tonk in June 2008, respondent ousted the appellant after giving beatings and on 19.1.2009 appellant lodged a case against respondent for offences punishable u/s 498A and 406 of IPC and said case being Case No.159/2005 is sub-judice before the Court of Chief Judicial Magistrate, Tonk.

6. Evaluation of evidence reveals that in evidence respondent Jafarullah has admitted that Gulnaz had filed a case in January 2009 against the respondent with allegations of cruelty

and demand of dowry.

7. Cross-examination of this witness is important since he has admitted that a compromise had taken place on 20.11.2007 with her wife at Mahila thana, Gandhi Nagar, Jaipur and has admitted that prior to this case, his wife had filed of a case u/s 498A, 406 of IPC against the respondent and a case for maintenance was also filed by the appellant, he has further stated that he did not bear, expenses of his kids’ school fee, books and dress borne at tonk, he has also admitted that he is unable to bear expenses of his wife and his children and those were being borne by his parents and brother.

8. DW1 Gulnaz has corroborated pleadings, written in her reply, she has also stated that on 19.11.2007 she had lodged a report against her husband at Mahila thana, Gandhi Nagar, Jaipur, which were later compromised and her husband ousted her from the house in the month o