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2009 Supreme(UK) 367
2009 (2) UAD 612
UTTARAKHAND HIGH COURT
Hon’ble Mr. Justice Prafulla C. Pant and Hon’ble Mr. Justice B.S. Verma
First Appeal No. 64 of 2008
SMT. SAPNA – Appellant
Versus
NEETU – Respondent
Decided on : 15.07.2009
For the Appellant :Mr. Pramod Tiwari, Advocate holding brief of Mr. Rajendra Singh, Advocate.
For the Respondent:Mr. Ajay Veer Pundir, Advocate.
Headnote:Hindu Marriage Act, 1955, Sec. 9 — Petition for restitution of conjugal rights by husband — Decree of such petition — Propriety of — Wife having withdrawn from society of husband on account of cruelty perpetrated on her for non-fulfilment of demand of dowry made by husband and, his parents and brother — Wife having lodged F.I.R. against husband and those others under Sections 498-A, 406, 323, 504, 506 IPC and Sections 3/4 of Dowry Prohibition Act — Chargesheet also having been filed in court on investigation of F.I.R. lodged by wife — CRiminal case also admittedly being pending in court — Under such circumstances it being not possible for wife to live with her husband and his family members peacefully in consequence of such decree for restitution of conjugal rights — Decree found to be not justifiable and accordinlgy set aside. (Paras 7, 8, 9)
fgUnw fookg vf/kfu;e] 1955] /kkjk 9 & ifr o mlds ekrk firk o HkkbZ }kjk iRuh dks ngst dh ek¡x iwjh u djus ds dkj.k ;kruk fn;s tkus ds dkj.k mlds }kjk vius vki dks ifr ls vyx dj ysus rFkk iRuh }kjk Hkkjrh; n.M lafgrk dh /kkjk 498-A] 406] 323] 504 o 506 ds vUrxZr izkFkfedh ntZ djkus ij ifr vkfn ds fo:) pktZ'khV nkf[ky dh tkus rFkk mlds vk/kkj ij nkf.Md dsl yfEcr gksus dh ifjfLFkfr;ksa esa iRuh dk ifr o mlds ifjokj ds lnL;ksa ds lkFk jg ikuk laHko uk gksus ds dkj.k oSokfgd lEcU/kksa dh iquLFkkZiuk dh fMdh vUrxZr /kkjk 9] fgUnw fookg vfèkfu;e ikfjr djuk mfpr ughaA ¼izLrj 7] 8] 9½
[Per : Hon’ble Prafulla C. Pant, J. (Oral)]
This appeal, preferred under Section 19 of the Family Courts Act, 1984, is directed against the judgment and order dated 30th of September 2008, passed by the Judge, Family Court, Haridwar, in Suit No. 291 of 2008, whereby the said court has decreed the suit for restitution of conjugal rights against the present appellant.
2. Heard learned counsel for the parties and perused the lower court record.
3. Brief facts of the case, giving rise to this appeal, are that the appellant got married to respondent on 26.11.2002, at Saharanpur. After marriage the appellant started living with her husband (respondent) in her matrimonial house at Laksar. In October 2003, appellant left for her parental house in Saharanpur and did not return back. The respondent filed a petition under Section 9 of the Hindu Marriage Act against the wife (present appellant) seeking decree of restitution of conjugal rights that the appellant (wife) has withdrawn herself from the society of the present respondent (husband) without any sufficient cause.
4. The wife (present appellant) contested the petition under Section 9 of the Hindu Marriage Act, 1955, and filed her written statement before the trial court. She admitted having married to the respondent Neetu. It is also admitted that she left her husband’s house in October 2003. However, rest of the contents of the petition are denied by the wife (present appellant) in her written statement. It is pleaded by her that the present respondent and his parents demanded dowry from the parents of the appellant, and harassed her for non-fulfillment of demand of dowry. It is also alleged by the present appellant in her written statement that she was treated with cruelty by her husband and in laws. It is also pleaded that she lodged a first information report with police station Kutub Sher, Saharanpur, relating to harassment due to non-fulfillment of demand of dowry in which charge sheet has already been filed against her husband and in-laws.
5. On the basis of the pleadings of the parties, following issues were framed by the trial court:
i) Whether, the respondent (present appellant) has withdrawn from the society of the petitioner (present respondent) without any reason?
ii) Whether, the petitioner (present respondent) is entitled to the relief, claimed?
6. After recording the evidence and hearing the parties, the trial court decreed the suit for restitution of conjugal rights. Hence, this appeal by the wife.
7. Admittedly, appellant Sapna got married to respondent Neetu on 26.11.2002, at Saharanpur, whereafter she lived with her husband in Laksar. It is also not disputed that in October 2003, she left for her parental house. The question before this Court is whether, she (the appellant) had withdrawn from the society of the husband (present respondent) without any sufficient reason so as to entitle him to decree of restitution of conjugal rights, or not?
8. From the evidence on record it is proved by the appellant that she lodged first information report against her husband and in-laws relating to offences punishable under Section 498-A,406, 323, 504, 506 of I.P.C. and one punishable under Section ¾ of the Dowry Prohibition Act. It is also proved on the record that charge sheet has been filed after investigation against the accused present respondent and three others namely, Neetu (husband); Bal Chand (father-in-law); Guddi (mother-in-law); Kuldeep (brother-in-law) and Sandeep (brother-in-law). Copy of the charge sheet is filed in the record of the trial court. P.W.1 Neetu (husband) in his cross-examination admits that the criminal case relating to demand of dowry is pending against him. However, he has stated that said case is false. We are at loss as to how the trial court has decreed the suit for restitution of conjugal rights in the present circumstances of the case. If the appellant is made to live with the respondent when criminal case is pending against him
