Balwant Kaur vs Balwant Singh

Sarojnei Saksena, J.—Wife-appellant has assailed the judgment and decree passed for restitution of conjugal rights u/s 9 of the Hindu Marriage Act, 1955 (herein after referred to as the Act) in favour of respondent- husband Balwant Singh on 7th November, 1984.

Admittedly, the parties were married on 17th November, 1976. Out of this wed-lock, the appellant-wife gave birth to four children. In May, 1982 the appellant went to her parental home and since then she is residing there.

The respondent filed a petition u/s 9 of the Act for restitution of conjugal rights on 23rd November, 1982 on the plea that the wife went to her parental home in May, 1982 for delivery of her fourth child and, thereafter, she has not come back to the matrimonial home to resume cohabitation with him, despite his efforts to bring her back. After the marriage on her insistence, he started living separately from his family members in Sangrur. Out of his salary, he used to give money to her parents. At the time of her fourth delivery, he gave her Rs. 600/-. She had taken away her jewellery and valuables at that time. Now she is pressing that he should give his entire pay to her parents. Since he has not accepted to this, she has failed to resume cohabitation with him.

The appellant denied all these allegations and ''inter alia,'' contended that this petition has been filed as a counter-blast to her petition filed u/s 125 Cr.P.C. which is pending in the Court of Chief Judicial Magistrate, Sangrur. The respondent-husband intends to avoid payment of maintenance to her and to her minor children who are all living with her in her parental home. She was maltreated by her husband and was turned out of the matrimonial home. Since then she is residing with her parents as her husband has neglected to maintain her.

In the replication the husband-respondent denied the allegations about the maltreatment, though, he admitted that her petition filed u/s 125 Cr.P.C. is pending in the Court.

Parties adduced evidence in support of their pleadings. The Trial Court held that the appellant-wife has withdrawn from the society of her husband without just and sufficient cause and consequently, the impugned decree for restitution of conjugal rights was passed in husband''s favour.

The appellant-wife''s Counsel did not appear when the appeal was heard. The respondent''s learned Counsel supported the Trial Court''s judgment and contended that in May, 1982, the appellant left the matrimonial home on her own as she wanted to deliver the child at her parents'' house and since then, she has not joined the respondent''s company. Respondent himself went to fetch her but she declined. He alongwith some other persons went to her parental home to bring her back but she and her parents asked him to reside with them and to give his whole salary to them. Since, he refused to abide by this dictate, they declined to send her to the matrimonial home. Relying on Gurbaz Singh v. Smt. Bhira @ Rantjit Kaur 1979 HLR 185, the respondent''s learned Counsel stressed that under the amended Section 9 of the Act, the wife is required to prove the justification for her withdrawal from the society of her husband. He pointed out that in this case the appellant has utterly failed to prove any reasonable cause for her withdrawal. The Trial Court has rightly disbelieved her evidence that she was turned out from the matrimonial home or was maltreated by the husband-respondent.

On scrutiny of evidence on record, I am unable to agree with the submissions advanced by the learned Counsel for the respondent. In the petition, the husband has pleaded that after marriage, she insisted that he should live separately from his parents. After some time, he took his separate residence in Sangrur at the instance of his wife. Her parents were greedy, and they used to demand money from him. His wife used to give money to her parents out of his pay. In May, 1982, she went to her parental home for delivery. At that time, she had taken with her Rs. 600/- cash, other valuable clothes and ornaments. After the delivery despite his attempts, she has refused to resume cohabitation with him. She has now started pressing to give his entire pay to her parents. He has examined himself, Rattan Singh PW 1 and Sita Ram PW2. These two witnesses are his colleagues. Rattan Singh has stated that he was residing in the neighbourhood of Balwant Singh. Balwant Singh never beat his wife. Two years ago, Balwant Kaur went to her parental home for delivery but, thereafter she has not come back. He alongwith eight or ten persons including the petitioner-husband had gone to her parental home to bring her back but she refused. In the cross-examination, he has admitted in unequivocal terms that he never visited the house of Balwant Singh when he was living in his neighbourhood. Thus, it is obvious that he has no knowledge how Balwant Singh behaved with his wife. He has further testified that they all went to her matrimonial home in April, 1982. Sita Ram PW2 has not given month or year when he alongwith Rattan Singh, petitioner and other persons went to Balwant Kaur''s parental home. Petitioner Balwant Singh has also stated that he went to his in-laws'' house alongwith these witnesses to persuade her to come back. Admittedly, the petitioner''s case is that his wife left for her parental home in the month of May, 1982. Thus, it becomes clear that the statement of these two witnesses Rattan Singh and Sita Ram cannot be relied on as they say that they had gone to her parental home in April, 1982 because even as per petitioner''s version in April, 1982, she was residing in her matrimonial home.

Further, the reasons as stated by these witnesses for her not coming back, are also different. Sita Ram PW2 has stated that she did not agree to come back. He does not know the cause of the dispute between the two. Balwant Singh PW3 has stated that he went to her parental home in August, 1982. He took eight/ ten persons also with her to her father''s house. In their presence, she again reiterated that he should live with her parents and shall give the entire pay to her parents. Rattan Singh PW1 and Sita Ram PW2 have not corroborated him on this point. Conversely, Rattan Singh PW1 has stated that at that time Balwant Kaur told them that Balwant Singh was maltreating her, therefore, she cannot go to his house without the consent of her parents and her parents told them that Balwant Singh should bring his parents to give assurance about the nice behaviour towards Balwant Kaur and then only she would be sent with him. Thus, it is apparent that the reasons given by Balwant Singh for her not joining him cannot be relied on.

Further, he has adduced evidence to prove that she and her parents asked him to shift in their house, but this fact is not pleaded in his petition. Hence, no reliance can be placed on this evidence.

Balwant Kaur RVV1 has testified on oath that her husband used to beat her and asked her to bring money or more dowry. She has categorically stated that after marriage for four/five years, he treated her well but, thereafter, he started quarrelling with her. She was beaten and turned out from the matrimonial home. At that time, she was pregnant. Her both the daughters accompanied her, she gave birth to a son in her parental home. Even, thereafter, her husband never came to see her or her son, never gave customary presents, never bothered to maintain them. Her uncle, sister''s husband and other members of the family were apprised by her about maltreatment given to her by her husband. Her parents and other relatives tried to rehabilitate her, but the husband declined.

Since she has filed a petition u/s 125 Cr.P.C. her husband has filed this petition to thwart her attempt. She has admitted that her petition u/s 125 Cr.P.C. was dismissed in default but she has filed another application and the order passed in that petition is on record.Vide order dated 21.3.1984, Chief Judicial Magistrate, Sangrur, has allowed her petition and has directed the husband to pay monthly maintenance at the rate of Rs. 100/- to wife and at the rate of Rs. 75/- for each child from the date of the petition that is 27.7.1983. The husband remained ex parte in those proceedings. From the order, it is evident in that petition, she pleaded that her husband used to maltreat her on the point of dowry. Though, in reply to this petition filed u/s 9 of the Act, he has not made such an averment but on oath, she has stated so. She has clearly stated that she is not prepared to go back to the matrimonial home as she apprehends danger to her life. She has denied that her husband used to give his pay to her. She has clarified the position that at the time of marriage, her husband was not employed. Her parents got him employed in P.S.E.B. and, thereafter, they came to reside in Sangrur, before that she was living with him and with his parents in village Bhai Baktaura, District Bhatinda. Thus, it becomes obvious that because of his employment, he shifted to Sangrur and not at the instance of his wife. She has denied mat when she left for her parental home, she brought Rs. 600/-, jewellery and valuable clothes. Balwant Singh PW3 has testified that he withdrew the amount of Rs. 600/- from Punjab National Bank and gave it to his wife when she was leaving in May, 1982, but no such document was filed by him to corroborate his oral testimony. She has also denied that she or her parents ever asked the respondent to reside at her parental home and to give his entire pay to them. She is duly corroborated by her sister''s husband Harnek Singh RW2 and her mother Khazam Kaur RW3. The Trial Court has commented that Khazam Kaur has stated that soon after the marriage, Balwant Kaur was maltreated by her husband on account of less dowry, but she has verified this position in cross- examination. She has clearly stated that seven years back, she was maltreated by her husband. That comes to five years after her marriage because at the time of her statement for the last two years, the appellant was residing with her. The appellant herself has stated that after four/five years of her marriage, the husband had started maltreating her.

The authority cited by learned Counsel for the respondent is quite distinguishable on facts. In that case, the wife withdrew from the society of her husband without any reasonable cause. She failed to prove her counter allegations against the husband. Despite surety being given, she was reluctant to go to her husband. Her father was also not willing to send her. On a minute appraisal of the evidence, it was held that the husband was entitled to a decree or restitution of conjugal rights. In this case, it is apparent that even Rattan Singh-PWl has admitted that when they went to bring her back, at that time she objected that as she was maltreated by her husband, she cannot go to his house without the consent of her parents and her parents told them that Balwant Singh should bring his parents to give assurance about nice behaviour towards Balwant Kaur and then only they will sent her. These facts are stated by this witness in examination-in- chief. Balwant Singh is deliberately silent on these points. This seems to be the real dispute between the parties. From the record, it is apparent that she gave birth to a child in July, 1982. If her intention was to go to her parental home for delivery purposes he would have gone to matrimonial home in June or in the beginning of July, 1982 but admittedly, she came to her parental home in May, 1982. This circumstance further lends support to her version that she was beaten and was turned out by her husband from the matrimonial home. Therefore, she came to her parental home alongwith her children. The conduct of the husband is apparent on record. He deliberately failed to appear in proceedings u/s 125 Cr.P.C. If really she would have withdrawn from his society without any reasonable cause, he would have contested that petition on the same allegation, but as a counter-blast, he filed this petition for restitution of conjugal rights, so that he may avoid the payment of maintenance to her and to her children. Had it not been true that she was maltreated by husband and was turned out from the matrimonial home, she would not have refused to rejoin him. Now she apprehends danger to her life. Her parents only wanted an assurance from his parents about his good behaviour towards her but it seems that Balwant Singh declined to accede to this. Thus, there is justifiable cause for the wife not to go to her husband. Learned Trial Court has fallen into an error in not scanning the parties'' evidence in respect of their pleadings.

It is also proved that after the delivery of the son, the husband never bothered to maintain his wife and children. Hence, the appellant''s contention appears to be true while the allegation put forward by the husband is untenable. The evidence indicates that the appellant never voluntarily withdrew from the society of her husband. She was forced by the husband to leave her matrimonial home. Now the husband can''t take advantage of his own wrong. He is not entitled to the grant of a decree for restitution of conjugal rights against the appellant.

Consequently, this appeal is allowed, judgment and decree of the Trial Court is set aside and respondent''s petition for restitution of conjugal right is dismissed.