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1980 Supreme(J&K) 10
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
S.S. Kang,M.L. Koul, JJ.
Amar Jeet Singh - Appellant
Versus
Manjeet Kaur - Respondent
CSA No. 46/1980
Decided On : 29 February, 1980
Advocate For Appellant: H.L. Bhagotra
Advocate For Respondent: T.S.Thakur
A husband's allegation of adultery and illegitimacy against his wife, without sufficient proof, can amount to mental cruelty and provide a reasonable excuse for the wife to refuse to resume cohabitation.
Headnote:
HINDU MARRIAGE ACT, 1955 - SECTION 9 - RESTITUTION OF CONJUGAL RIGHTS - LEGITIMACY OF CHILD - PRESUMPTION UNDER SECTION 112 OF THE EVIDENCE ACT - REBUTTAL.
Fact of the Case:
Husband filed a petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights, alleging that the wife had deserted him without any reasonable excuse. The wife contested the petition, alleging that the husband had treated her with cruelty and had impliedly denied the paternity of their child, causing her mental cruelty.
Finding of the Court:
The trial court granted the husband's petition, but the High Court set aside the decree on appeal, holding that the husband had caused mental cruelty to the wife by levelling a charge of adultery against her and implying that the child was illegitimate.
Issues: 1. Whether the wife had deserted the husband without any reasonable excuse. 2. Whether the husband had treated the wife with cruelty.
Ratio Decidendi: The High Court held that the husband's assertion that he had no access to the wife at the time of conception of the child was not sufficient to rebut the presumption of legitimacy under Section 112 of the Evidence Act. The court also held that the husband's allegation of adultery and illegitimacy had caused mental cruelty to the wife, giving her a reasonable excuse for not resuming cohabitation.
Final Decision: The High Court dismissed the husband's appeal, upholding the lower court's decision to dismiss the petition for restitution of conjugal rights.
1. By this Civil Second Appeal Challenge is made to the judgment of the learned Single Judge dated 5.2.1982. whereby the judgment and decree dated 21.7.1980 decreeing the appellant™s petition for restitution of conjugal rights by the learned Additional District Judge, Jammu, has been set aside, the petition of the appellant has been dismissed.
2. The brief facts of the case which have given rise to filing of this Civil Second Appeal, as narrated from the pleadings of the parties, are that on 16.11.1972 the appellant (hereinafter to be called as ˜the husband™ filed a petition under Section 9 of the Hindu Marriage Act, contending therein that the marriage between the husband and the respondent Manjeet Kaur (hereinafter to be called as ˜the wife™) was solemnized according to the Sikh rites and ceremonies on 1.8.1971. Some two months after the marriage the wife left her matrimonial home and went with her uncle Dr. Kulwant Singh to her parental house on the pretext that her father had to be operated upon for some eye trouble and her presence was required there. Having left her husband™s house of her own, the wife did not come back despite various efforts made by the husband to bring her back. As the husband™s efforts failed to bring her back, therefore, on, 2.6.1972 a written notice was sent to the wife asking her to rejoin her husband™s company and perform her matrimonial duties, but it was of no avail and no reply was received. Next notice was sent by the husband on 21.10.1972 through an Advocate and reply to that was received through her counsel; that inspite of all this the wife failed to join her matrimonial life with her husband and had thus deserted the society of her husband willfully without any lawful justification. A petition under Section 9 of the Hindu Marriage Act was, therefore, filed.
3. The wife through her written statement controverted the allegations of her husband and stated that the petition under Section 9 of the Hindu Marriage Act was not bonafide and the same was done by the husband with a step towards finally getting rid of the wife. The factum of the marriage and her having gone to the parent™s house on 29.9.1971 was admitted to the effect that she had not gone away on any false pretext but had left the house of her husband because her life had become miserable and insecure in her husband™s house. It was contended that the husband visited her off and on at parental house at Bishnah as well as at Nagrotra that during such visits the husband used to have sexual intercourse with her and as a result of that she conceived and became pregnant and out of that pregnancy she gave birth to a child on 12.9.1972, Although the husband was fully aware that the wife had conceived from his loins, yet in order to get rid of his wife somehow or the other, he impliedly denied the paternity of the said child in his notice dated 21.10.1972 saying that he had never an occasion after 29.9.1971 to have met her in seclusion getting a chance to have sexual intercourse with her and thereby he has impliedly stated that the male child born to the wife on 12.9.1972 was an illegitimate child. It was further asserted by the wife in her objections that even during her short stay of two months or so with her husband in her matrimonial house, her husband had expressed doubts about her chastity and had levelled extremity unbecoming accusations concerning her conduct and character. Such bald allegation of her husband doubting her chastity justified her living away from her husband because such conduct of her husband had caused her mental cruelty. It was further asserted by the wife that her husband was having illicit relations with a girl called Mohini and she was subjected to mental cruelty and torture; that while she lived in the company of her husband she tried to seek protection from her inlaws, but they also showered abuses on her.
4. At the trial, on the pleadings of the parties, following issues were framed on 10.5.1973:
