Balesh G. Kamkar vs Asha

N. Kumar, J.

The husband has preferred this miscellaneous first appeal against the order passed by the Senior Civil Judge, Holalakere granting a decree for restitution of conjugal rights.

For the purpose of convenience, the parties are referred as they are referred to in the original proceedings.

Smt. Asha, married Sri. Balesh G. Kamkar on 15.02.2009 at Sri. Siddeshwara Kalyana Mantapa, Chickjajur Village, Holalkere Taluk, according to the Hindu customs and rites. The said marriage was performed in the presence of the elders, relatives, friends and well-wishers. After the marriage, for a period of two years, they led a happy married life. However, no child was born. Thereafter, the respondent without any justification started quarrelling with the petitioner and was treating her with cruelty. Even the respondent''s mother was using abusive language against the petitioner and was giving both physical and mental torture and she was not allowing her to live with the husband. The respondent, on the advise of his mother started avoiding her. Though both of them wanted to live together, it is the mother of the respondent, who is not allowing them to live together. The respondent also started ill-treating the petitioner and started keeping her away. Unable to bear this mental and physical torture, she had no option, except to go to her parents'' house. Thereafter, she got a notice issued, calling upon the petitioner to live with her. It was mentioned therein that she was married at a very young age she had her own dreams and she thought that throughout her life, she would be happy and she is very eager to live with him and she is eagerly awaiting his arrival. However, when he did not respond, she had no option except to file this petition for restitution of conjugal rights.

After service of notice, respondents entered appearance by engaging a counsel and filed statement of objections denying all the allegations made in the petition. He denied that he and his mother have used abusive language against the petitioner. He stated that he has sent a reply on 06.07.2013, to the legal notice sent by the petitioner. In the reply, it is stated that the marriage was performed by the respondent''s parents in a grand manner. He has not received anything from them at the time of marriage, neither cash nor gold. He lived with the petitioner only for few months after the marriage. The respondent without any reason was going to her parents'' house frequently. She also demanded to have a separate residence away from his parents. He has further stated that she was not assisting his mother in the household work. She was only having food in the house and relaxing. In spite of showering his love on her she was not heeding to his advice. She was always quarrelling with him and she even lodged a Dowry complaint against his father and mother. In spite of it, the respondent called her mother and father and asked them to advise her and she was advised through her elders in the family. Therefore, in May, 2011 he set up a separate house in Ganesh Villa Apartment at Belgaum. Still the petitioner was quarrelling with the respondent. She was demanding for divorce. In 2011, December, she deserted him and took away all the sarees and ornaments. Thereafter Panchayats were held. There was no result. He was insulted. When she sent a legal notice to him, in reply to that, he gave a dead line of 7 days for her to come and join him and he also filed M.C. No. 251/2013 for restitution of conjugal rights. After filing of the petition, he called her over the phone several times and attempted to contact her but she refused to speak. She has not cared for the Panchayatdars. He further states that though she had no intention to live with the respondent, with an intention of harassing him, she filed Criminal Misc. No. 271/2014. Thereby she has inflicted mental cruelty on him. Therefore, he sought for dismissal of the application.

The Family Court, on the basis of the aforesaid pleadings framed the following points for consideration:

"(a) Whether the petitioner is entitled for the relief sought for?

(b) What order?"

The petitioner, to substantiate her claim examined herself as P.W. 1 and she has produced the marriage invitation card and has marked it as Ex. P1. In spite of sufficient opportunity given to the respondent, he did not cross-examine nor adduce any evidence. It is in those circumstances, the Family Court, on appreciation of the oral and documentary evidence on record held that the respondent-husband has without any justification deserted the petitioner. When the respondent had filed M.C. No. 251/2013 for restitution of conjugal rights, there is no justification for him not to take his wife back. His conduct in the Court and in those proceedings clearly show that he wants to harass the petitioner. Under these circumstances, in the absence of any justification on the part of the respondent to live separately, it decreed the petition for restitution of conjugal rights. Aggrieved by the said order, the husband has preferred this appeal.

The learned counsel for the appellant assailing the impugned order contended that the wife has no intention to live with the husband. This case is filed only to harass the appellant. In fact it is an ex parte order. An opportunity may be give to the husband to cross-examine P.W. 1 and lead evidence and therefore he submits that a case for interference is made out.

Therefore, the point that arises for our consideration in this appeal is:

"Whether the husband-appellant has made out a case for interference with the order passed by the Family Court?"

The marriage between the parties is not in dispute. According to the wife, for two years after the marriage, they lived happily. However, according to the appellant, they lived happily only for few months. In other words, their marriage is consummated. The wife''s case is to be believed that it is her mother-in-law, who is coming in the way of the husband and wife living together. That is a common phenomenon. We find that when the mother has got only son, she is quite apprehensive that the daughter-in-law would take away her son from her. At the same time, when the respondent-wife''s life was made miserable, she was forced to leave the matrimonial home and live with her parents. Immediately she caused a legal notice to the husband to take her. In response, the appellant-husband replied giving her 7 days time to join him. Now his grievance is, as she did not join within 7 days, she has lost her rights to join her husband. In fact the husband filed a petition for restitution of conjugal rights. It is thereafter, the wife has filed this petition for restitution of conjugal rights. This unimpeachable evidence on record shows that both husband and wife wanted to live together and Court has to unite them and therefore, we find substance in the submission of the wife that it is the mother-in-law, who is coming in the way of the husband and wife living together. This is probably the reason, why the respondent did not choose to cross-examine P.W. 1 in spite of several opportunities given. If we go through the objection statement filed in this case, there is no serious objection at all. Under these circumstances, the Family Court rightly taking into consideration that the husband had filed a petition for restitution of conjugal rights and wife is also seeking for restitution of conjugal rights, in the past they lived happily after marriage and now that he has made a separate house in an apartment, rightly decreed the case filed by the wife for restitution of conjugal rights. We do not find any justification to interfere with the well considered order passed by the Family Court. There is no merit in this appeal. Appeal is dismissed.