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1997 Supreme(MP) 854
V.K. Agarwal, J.
Ram Sujan
vs
Urmila Bai
Decided On : 19 December, 1997
In order to obtain a decree for restitution of conjugal rights, the petitioner must prove that the respondent has withdrawn from the society of the petitioner without any reasonable excuse.
Headnote:
HINDU MARRIAGE ACT - SECTION 9 - RESTITUTION OF CONJUGAL RIGHTS - ADULTERY - WITHDRAWAL FROM SOCIETY WITHOUT REASONABLE EXCUSE - INTERPRETATION AND APPLICATION.
Fact of the Case:
The appellant husband appealed against the trial court's decision granting restitution of conjugal rights to the respondent wife and dismissing his counterclaim for divorce. The appellant alleged that the respondent was living in adultery with another man, Chamru, and that he had withdrawn from her society for reasonable cause.
Finding of the Court:
The court found that the appellant had failed to prove the allegation of adultery against the respondent. The court also found that the appellant had withdrawn from the society of the respondent without any reasonable cause.
Issues: 1. Whether the respondent was living in adultery with Chamru? 2. Whether the appellant had withdrawn from the society of the respondent without any reasonable cause?
Ratio Decidendi: 1. The court held that the appellant had failed to prove the allegation of adultery against the respondent. The court noted that the appellant had not seen the respondent in the house of Chamru and that the only witness who testified to seeing the respondent in Chamru's house had contradicted her own testimony. 2. The court held that the appellant had withdrawn from the society of the respondent without any reasonable cause. The court noted that the appellant had refused to take the respondent back after she had served him with a notice requesting him to do so, and that he had used abusive language in the panchayat that was held to persuade him to take her back.
Final Decision: The court dismissed the appeal and upheld the trial court's decision granting restitution of conjugal rights to the respondent and dismissing the appellant's counterclaim for divorce.
V.K. Agarwal, J.
1. This appeal under Section 28 of the Hindu Marriage Act is directed against the judgment and decree dated 3.11.1992 whereby the application of respondent Urmila Bai, wife of appellant under Section 9 of the Hindu Marriage Act for restitution of conjugal rights has been allowed and the counter claim filed by the appellant was dismissed.
2. The facts not in dispute are that the parties are Hindus. Respondent Urmila and appellant Ram Sujan were married while they were minors. 'Gauna' ceremony took place in the month of 'Baisakh' in the year 1979. The respondent resided for 3 days with the appellant after the 'Gauna' and thereafter went to her parents. After about a month, the appellant had brought the respondent to his house where they lived together as husband and wife for 5 days. Thereafter, the respondent is not residing with the appellant.
3. It is also not in dispute that the respondent had served a notice dated 4.8.1990 by registered post on the appellant, requesting him that he should take back the respondent and live with her. However, the appellant did not accede to the above request and instead sent a reply dated 13.S.1990 whereby the appellant had alleged that the respondent is living in adultery and had illicit relations with Chamru.
4. The respondent/petitioner alleged that the appellant and his family members are carrying on dairy business and had asked the respondent to bring two she-buffaloes of 'Murrah' breed in dowry. Since, the respondent and her father were poor, they were unable to meet the above damand. Though the respondent-wife was ready and willing to reside with the appellant, but the appellant refused to do so. Efforts were made by the respondent/applicant by calling the 'Panchayat' at village Khannat and Choradih thrice, but the appellant refused to take the applicant/respondent with him. He was levelled false allegation of adultery against her.
5. The appellant/non-applicant Ram Sujan denied the above allegations. It was alleged by him-that the respondent had been caught red-handed in the house of Chamru, wherein she had gone with illicit purpose and remained there for two hours after closing the door from inside. One Ramnivas and his mother had seen her there. In view of the fact that respondent is leading an immoral life, she is not entitled to the relief of restitution of conjugal rights. The appellant/non-applicant by way of counter-claim prayed that a decree of divorce be granted in his favour.
6. The Trial Court framed issues regarding the appellant having withdrawn from the society of respondent without any reasonable excuse and regarding the respondent having illicit relations with Chamru. The learned Trial Court by the impugned judgment has held that adultery as alleged has not been proved by the appellant by leading adequate and proper evidence in this regard; and it also held that it is established that the appellant/non-applicant has withdrawn himself from the society of respondent without any reasonable cause. Accordingly the petition of the respondent/applicant for restitution of conjugal rights was allowed, and the counter claim of the appellant seeking a decree for divorce was dismissed.
7. In this appeal, the learned Counsel for appellant has urged that there is sufficient evidence on record to indicate that the respondent was having illicit relations with Chamru and was apprehanded red-handed in his house and therefore, the appellant was entitled to a decree for divorce and the petition filed by the respondent for restitution of conjugal rights in the circumstances and in the face of the evidence on record deserves to be dismissed.
8. Learned Counsel for respondent/applicant however, has urged that the evidence regarding physical relationship of the respondent/applicant with Chamru is not sufficient. It has also been urged that it is clear from the evidence and material on record that the appellant/non-applicant Ram Sujan has withdrawn from the society of the respo
