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CALCUTTA HIGH COURT
Bhaskar Bhattacharya, A.C.J. and Prasenjit Mandal, J.
Naba Kumar Katari —Appellant
versus
Kalyani Katari —Respondent
F.A. No. 296 of 2007
Decided on 18.11.2009
For the Appellant:Mr. Aniruddha Chatterjee, Advocate.
For the Respondent:Mr. Tapan Kumar Gupta, Amit Banerjee and Amit Kumar Misra, Advocates.
IMPORTANT POINT
Law does not require that in order to have a decree for restitution of conjugal rights, husband must have a permanent place of residence.
Headnote:(i) Hindu Marriage Act, 1955—Sections 9 and 23—Restitution of conjugal rights—Dismissal of proceedings initiated by appellant-husband—Respondent-wife refused to come to place of posting of appellant thereby necessitating filing of application under Section 9—Application dismissed by Trial Judge on the ground that husband did not mention in application for restitution of conjugal rights place where wife should go to perform her marital obligations—Wife herself stated in her evidence that she was willing to stay with her husband and that she did not want divorce—Law does not require that in order to have a decree for restitution of conjugal rights, husband must have a permanent place of residence and that wife must be asked to go to that permanent place of residence—In absence of any reasonable excuse put forward by wife for not living with husband, Trial Judge erred in law refusing prayer of husband for restitution of conjugal rights—Impugned judgment and decree set aside—Appeal allowed. (Paras 16, 17, 18, 23 to 29)
(ii) Hindu Marriage Act, 1955—Section 9—Restitution of conjugal rights—Conduct of a spouse which even falls short of cruelty or any other matrimonial offence under Act would afford reasonable excuse for withdrawing from society of petitioning spouse— Same can be put forward as a defence in a proceeding for restitution of conjugal rights. (Para 16)
(iii) Words and Phrases—Conjugal rights—Quintessence of marriage lies in sharing of all delights that once can expect in one’s life—Object of marriage cannot be accomplished if any of spouses decides to live apart against wish of other. (Paras 17, 18 and 20)
Result: Appeal allowed.
Bhaskar Bhattacharya, A.C.J. — This first appeal is at the instance of a husband in a proceeding under Section 9 of the Hindu Marriage Act and is directed against the judgment and decree dated 19th October, 2006 passed by the learned Additional District Judge, Arambagh, District Hooghly, in Matrimonial Suit No.72 of 2005, thereby dismissing the proceeding for restitution of conjugal rights.
2. Being dissatisfied,’ the husband has come up with the present appeal.
3. There is no dispute that the parties were married on 5th July, 1987 according to Hindu rites and ceremonies and in the said wedlock, two children were born. The husband, at present, is employed in Border Security Force and is posted at Amritsar in the State of Punjab.
4. After the marriage, the parties lived together as husband and wife in the joint family of the husband, but in view of disputes between the wife and her in-laws, in absence of the husband, the wife left the said joint family of her husband and went back to her father’s house on 5th August, 1988.
5. At that point of time, according to the husband, he was posted in West Bengal and due to pressure given by the wife, he paid a sum of Rs.1,60,000 in cash to his father-in-law, who, in his turn, helped him to construct a new house for the respondent.
6. Subsequently, the husband was transferred to Amritsar. The wife, in spite of repeated requests by the husband, had refused to come to the place of posting of the husband and hence, the said proceeding for restitution of conjugal rights was initiated.
7. The suit was contested by the wife by filing written statement thereby denying the allegations made in the application for restitution of conjugal rights and the defence of the wife was that the members of the family of the husband demanded dowry from the wife, but such money not having been paid, they started torture upon the wife and the wife was compelled to come back to her father’s house. The father of the wife gifted 8 sataks of bastu land in favour of the wife and with his own money, made construction of a house for the residence of the wife. It was absolutely false that the husband contributed a sum of Rs.1,60,000 for the construction of the said house. Although the husband inflicted physical cruelty upon the wife, she was always ready and willing to stay as a wife with the husband and she never declined to stay together and as such, the application should be dismissed.
8. At the time of hearing, the husband himself and one Anisura Begum deposed in support of the application while the wife herself, her sister and one Swapan Kr. Roy deposed in favour of the wife.
9. As indicated earlier, the learned trial Judge, by the judgment and decree impugned herein, has dismissed the application for restitution of conjugal rights on the ground that the husband did not mention in the application for restitution of the conjugal rights, the place where the wife should go to perform her marital obligations. According to the learned trial Judge, the house constructed by the father of the wife at the village Supara within the Arambagh Municipality is the permanent residence of the parties and thus, no direction could be given to the wife to stay at Amritsar without creating any congenial atmosphere. It was further found by the learned trial Judge that the wife never withdrew herself from the society of the husband and as such, the husband was not entitled to get a decree for restitution of conjugal rights.
10. Mr. Chatterjee, the learned advocate appearing on behalf of the appellant, strenuously contended before us that the wife herself having specifically asserted before the Court that she was always ready and willing to come and stay with the husband, there was no just reason for the learned trial Judge to dismiss the proceeding for restitution of conjugal rights. Mr. Chatterjee submits that the learned trial Judge dismissed the proceeding by not following the well-accepted principles which are required to be
