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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR
MOHAMMAD RAFIQ, GOVERDHAN BARDHAR, JJ.
Meena Kumari W/o Sohan Lal – Appellant
Versus
Sohan Lal S/o Ram Dayal – Respondent
D.B. Civil Miscellaneous Appeal No. 3238 of 2017
Decided On : 01-03-2019
Advocate Appeared:
For the Appellant : Mr. Kailash Sharma.
For the Respondent: Mr. Ashindra Gautam.
Headnote:
Hindu Marriage Act, 1955 –Section 9 – Applicant-husband filed petition against non-applicant-wife for grant of decree for restitution of conjugal rights with averments that both parties married in Village as per Hindu Rites and Customs, After marriage non-applicant-wife remained with him for some time, thereafter, she started frequent visits to her parental home when she went to her parental home with her father saying that she will return within 10-15 days but she did not return applicant-husband tried his best to bring her but non-applicant-wife did not come nor her parents sent her, applicant-husband along-with other family members and relatives went to her parental home but she refused to come, non- applicant-wife is living with her parents under their influence –Held, There is no reason to disbelieve allegation of cruelty and facts stated in affidavit filed by appellant-wife in evidence, there is no cogent evidence available on record with regard to any bona-fide effort made by applicant-husband to bring non-applicant-wife at home, though applicant-husband stated that he made efforts to bring non-applicant-wife at home but failed to lead any evidence in regard to fact that despite efforts, without any sufficient reason, non-applicant-wife declined to join, respondent-husband failed to establish his bona-fide in situation of strained relationship whereas appellant-wife has placed material on record in order to prove sufficient reason to refuse to live with her husband – Appeal is allowed. (Para 15, 16, 17)
Facts of the case: Applicant-husband filed petition against non-applicant-wife for grant of decree for restitution of conjugal rights with averments that both parties married in Village as per Hindu Rites and Customs, After marriage non-applicant-wife remained with him for some time, thereafter, she started frequent visits to her parental home when she went to her parental home with her father saying that she will return within 10-15 days but she did not return applicant-husband tried his best to bring her but non-applicant-wife did not come nor her parents sent her, applicant-husband along-with other family members and relatives went to her parental home but she refused to come, non- applicant-wife is living with her parents under their influence.
Findings of the court: There is no reason to disbelieve allegation of cruelty and facts stated in affidavit filed by appellant-wife in evidence, there is no cogent evidence available on record with regard to any bona-fide effort made by applicant-husband to bring non-applicant-wife at home, though applicant-husband stated that he made efforts to bring non-applicant-wife at home but failed to lead any evidence in regard to fact that despite efforts, without any sufficient reason, non-applicant-wife declined to join, respondent-husband failed to establish his bona-fide in situation of strained relationship whereas appellant-wife has placed material on record in order to prove sufficient reason to refuse to live with her husband.
Result: Appeal is allowed.
GOVERDHAN BARDHAR, J.
1. This Misc. Appeal has been filed by the appellant/non-applicant-wife (‘the non- applicant-wife’ for short) under section 19 of the Family Court Act against the judgment and decree dated 12.05.2017 passed by learned Family Court, Sawai Madhopur, whereby the petition filed by the respondent/applicant-husband (‘the applicant husband’ for short) under section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights has been allowed and a decree has been passed.
2. Brief facts of the case are that on 26.06.2014 applicant-husband filed a petition under section 9 of the Hindu Marriage Act, 1955 (‘the Act of 1955’ for short) before the learned Family Court, Sawaimadhopur, against the non-applicant-wife for grant of decree for restitution of conjugal rights with the averments that both the parties married on 16.05.2011 in Village Lodipura as per Hindu Rites and Customs. After marriage non-applicant-wife remained with him for sometime. Thereafter, she started frequent visits to her parental home and on 26.05.2013 when she went to her parental home with her father saying that she will return within 10-15 days but she did not return. He (the applicant-husband) tried his best to bring her but the non-applicant-wife did not come nor her parents sent her. On 20.06.2014 the applicant-husband along-with other family members and relatives went to her parental home but she refused to come. The non- applicant-wife is living with her parents under their influence.
3. The non-applicant wife submitted reply of denial to the petition. The non-applicant-wife specifically pleaded in the reply that she was forcibly thrown away from the matrimonial home for want of dowry for which an FIR No. 12/2015 was lodged by her at Police Station Mahila Thana, Sawai Madhopur, for offences under sections 498A and 406 IPC. After marriage she was harassed, tortured and cruelty was also committed upon her by giving severe beatings. All her dowry articles have been snatched by the applicant-husband. The non-applicant-wife prayed in the reply that in the above circumstances it is quite impossible for her to live with the applicant-husband and prayed for dismissal of the petition with costs.
4. The learned Family Court on the basis of pleadings of parties framed three issues which are as under:-
"A. Whether non-applicant-wife has deserted the applicant-husband without any reasonable cause?
B. Whether the applicant-husband is having right against the non-applicant-wife for restitution of conjugal rights?
C. Relief?"
5. The applicant-husband in his evidence got himself examined as AW-1, Ramdayal as AW-2, Mishrilal as AW-3 and Ramniwas as AW-4. The non-applicant-wife in her evidence got herself examined as NAW-1 and Maina as NAW-2.
6. The learned Family Court vide judgment dated 12.05.2017 allowed the petition filed by the applicant-husband for restitution of conjugal rights under section 9 of the Act of 1955 and ordered the non-applicant-wife to live with the applicant-husband as a wife and passed the decree.
7. Learned counsel for the non-applicant-wife has argued that the learned Family Court has erred in not considering the statements of the non-applicant-wife as she specifically stated that the applicant-husband and his other family members tortured her and gave beatings to her for or in connection with demand of dowry and she was maltreated and forcibly ousted from the matrimonial home. A criminal case has also been registered against the applicant-husband and his family members and the trial is pending. The applicant-husband does not want to live with the non-applicant-wife and in a planned manner he filed the petition under section 9 of the Act of 1955. Due to mental and physical harassment made by the applicant-husband with her it is quite impossible for her to live with him (applicant- husband). The applicant-husband filed the application under section 9 of the Act of 1955 with a view to counter the criminal case which has been r
