B. Krishnamurthy vs Smt Bharathi @ Bhojamma

K.L. Manjunath, J.—The unsuccessful husband has filed this appeal being aggrieved by the dismissal of his petition u/s. 9 of Hindu Marriage Act, by the Addl. Civil Judge, (Sr. Dn.), Sagar dt. 20.4.2011 in M.C. No. 26/2009. Heard the counsel for the parties.

The admitted facts are that the marriage between the parties was solemnized at Ripponpete Gowdasaraswatha Kalyana Mantapa on 22.6.1997. Thereafter the parties lived at Bangalore happily for six months and thereafter difference between the husband and wife arose, as a result of which they were living separately. On the ground that the respondent-wife is living separately without any cause and that the appellant is willing to live with the respondent he filed the petition u/s. 9 of the Hindu Marriage Act.

The respondent contested the case denying the allegation that the appellant was taking care of the respondent properly. On the contrary she was harassed by the appellant immediately after the marriage. Since she could not live with the appellant on account of the cruelty meted out to her, she has been residing with her parents. It is also her case that she had filed a petition claiming maintenance u/s. 125 Cr.P.C. in Cr. Mis. 191/2004 before the Civil Judge, (Jr. Dn.) Sagar. The appellant having appeared therein promised that he would look after her properly and on account of the promise made by him, a compromise petition was filed before the Lok Adalath. In view of the compromise, the matter was settled out of court. Again he continued the very same attitude and he neglected to maintain the respondent. Therefore, she filed one more petition in C. Mis. 49/2008 before the same court, wherein maintenance is ordered. To avoid maintenance order by the Trial Court, a petition u/s. 9 has been filed. In the circumstance, she requested the court to dismiss the petition. In addition to that she has made several allegations against the appellant.

In order to prove their respective contentions, on behalf of the appellant, the appellant got himself examined as P.W. 1. He relied upon Ex. P1 to Ex. P5. On behalf of the respondent, she herself examined as RW1 and relied upon Ex. R1 to R17. The Trial Court after appreciating the evidence came to the conclusion that the appellant has not made out any case to grant a decree of restitution of conjugal right. Accordingly, the petition came to be rejected. Challenging the same, the present appeal is filed.

An attempt was also made by this court to settle the dispute amicably between the appellant and the respondent. The attempt made by this court ended in vain.

In the circumstances, we have heard the appeal on merits.

The only point to be considered by this court in this appeal is:

1) Whether the appellant is entitled for the decree of restitution of conjugal rights or not?

On perusal of the evidence let in by both the parties and the documents relied upon, it is clear that all is not well between the parties immediately after the marriage. It is a fact that the respondent is living with her parents. On the ground that she has been treated with cruelty and that she has been neglected by her husband the petition was filed u/s. 125 Cr.P.C. for grant of maintenance in C. Mis. No. 191/04, which petition came to be ended in terms as per Ex. P5. Thereafter also the respondent has filed a petition in C. Misc. No. 49/2008 for grant of maintenance. Subsequent to filing the second petition u/s. 125 Cr.P.C., the petition came to be filed by the husband u/s. 9 of the Hindu Marriage Act. We have also seen certain letters addressed by the appellant which are marked as Ex. R2 to R5. On perusal of Ex. R2 to R5, we are of the view that the language employed therein would only disclose the mental cruelty meted out by the appellant to the respondent and in such circumstances if the respondent is living separately, no court can grant a decree for restitution of conjugal rights in favour of the husband-appellant. In the result, the appeal is dismissed and the Judgment and decree of the Trial Court is confirmed.