Reserved

IN THE HIGH COURT OF UTTARAKHAND

AT NAINITAL

First Appeal No. 105 of 2012

Gulista

.…… Appellant

Versus

Jamshed

……. Respondent

Present: Mr. Nagesh Aggarwal, Advocate for the appellant.

Mr. Bilal Ahmed, Advocate holding brief of Mr. Mohd.

Safdar, Advocate for the respondent.

Coram:- Hon’ble Rajiv Sharma, J.

Hon’ble Sharad Kumar Sharma, J.

Reserved on: 14.06.2017

Delivered on: 07.10.2017

Per - Hon’ble Sharad Kumar Sharma, J.

In a claim by a partner, to the proceedings for

restitution of conjugal rights, it has to be settled first

that the restitution which has been sought from the

other spouse is only when it is settled that the person

has for no good valid reason has deliberately not

discharged his or her matrimonial obligations or has

intentionally and permanently intended to desert which

is the basic element to sustain a sound and a peaceful

marriage. Whenever a partner to the marriage

withdraws herself or himself from the society of the

other without valid reason withdrawal from Society of

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other, this is often determined as to be a cruelty

against the other who suffers from withdrawal under

the matrimonial laws.

2.

The

case

at

hand

arise

out

of

the

proceedings initiated by the respondent-husband for

restitution of conjugal rights due to deliberate desertion

by the wife which has been decreed. This decree of

restitution of conjugal rights has been put to challenge

by the wife. As per the records, both the parties to the

appeal profess and practice Islam. According to their

admitted case, their marriage was solemnized on

27.03.2008 and after coming to the matrimonial home

of the husband, she discharged her matrimonial

obligations.

3.

It is further admitted by the parties to the

appeal that out of the marriage, a child was born but

she contends that owing to the consistent demand of

dowry and the harassments, both mental and physical,

which she was made to suffer, forced herself to

separate

from

the

family

of

in-laws

and

live

independently as she was apprehending fear for her

existence with the in-laws.

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4.

It is an admitted case by the wife that she on

27.04.2009 had left the home of the husband and

started living with her parents. In the pleadings, it has

come that the husband’s case was that despite of all

the efforts being made by the family members of the

respondent-husband to ensure that she continues to

reside with the in-laws family and discharge her

matrimonial obligations failed because often she used

to pressurize the husband to leave the village and to

start living in the township from where the wife belongs.

5.

When husband refused the same and

declined to live in the town of wife as gharjamai, she

deserted the husband on 27.04.2005. The husband

submitted that after the marriage, the appellant was

kept by the in-laws with all love and affection and all

due respect, which a wife is supposed to have from the

family members of the husband was provided to her

but she used to reside in a manner which showed that

rather she was not happy while living with the in-laws

and that is why she on 27.04.2009, left the matrimonial

home, even without giving any information to the in-

laws.

6.

When the appellant faced the proceedings for

restitution of conjugal rights, she submitted that the

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proceedings of restitution of conjugal rights have been

initiated by the husband so as to overcome the

probable proceedings which could be drawn by the

wife on both civil and criminal side against the husband

as permissible under law and the proceedings for

restitution of conjugal rights by the husband was in

pesbandi to overcome the demand of four wheeler,

which they had been making from the parents of the

appellant. She apart from raising an allegation for

dowry demand against the respondent, she further

contended that