Darshan Ram vs Maya Bai

Sarojnei Saksena, J.—The husband has preferred this appeal against the dismissal of his petition u/s 5 of the Hindu Marriage Act, 1955 (in short, the Act) for restitution of conjugal rights.

It is not disputed that the appellant was married to the respondent 4-3/4 years prior to the institution of the proceedings at village Ahalbodla, Tehsil Fazilka, as per Hindu rites. After the marriage the appellant and the respondent lived in the matrimonial home for one year. The respondent gave birth to a daughter in this conjugal union. After one year the respondent left the matrimonial home and has not come back. It is also admitted that the respondent filed a petition u/s 125 of the Code of Criminal Procedure (in short, the Code), which is decided against the appellant.

The appellant''s case was that the respondent has withdrawn from his society without any reasonable cause three years prior to the institution of the proceedings (7.1.1989). According to him, there was absolutely no dispute between the parties for one year. After the death of his brother Madan Lal, he along with his relatives went to Hardwar in connection with the last rites of the deceased. During the absence the respondent left the matrimonial home. On coming back from Hardwar, he went to her parental home to bring her back, but she and her father refused on the ground that unless he separates from his father, she will not return to the matrimonial home. Thereupon his father separated him and gave him a portion of the house to live in with the respondent. Thereafter the respondent came and lived with him for one week only and left the matrimo- nial house taking away all valuables of the petitioner-appellant. Thereafter despite his persuasions and attempts of the panchayat, the respondent flatly refused to come back to the conjugal union.

The respondent in her reply averred that she was beaten by the appellant and was turned out of the matrimonial home to coerce her to bring more dowry. Her parents gave Rs. 5,000/- to the appellant, but still his greed for more dowry was not satiated. He demanded a scooter and a television to be given in dowry. She was turned out of the matrimonial home. Thereafter the appellant never made any attempt to bring her back. Conversely, he declared that he will perform a second marriage. She also alleged that these proceedings are initiated as a counter-blast to her application filed u/s 125 of the Code and to harass her.

The appellant filed rejoinder and denied the averments made by the respondent and reiterated the stand taken by him in the petition.

Two issues were raised and thereupon the parties adduced their evidence.

The Trial Court, while deciding issue No. 1, admitted that burden of proof of issue No. 1 was wrongly placed on the petitioner-appellant, though under Explanation to Section 9 of the Act, the respondent was to prove that her withdrawal from the society of the appellant was on the basis of reasonable excuse. The Trial Court scanned the parties'' evidence minutely and came to the conclusion that the petitioner-appellant has failed to prove the case set up by him in his petition. The Trial Court also held that this petition is filed with an intention to thwart the grant of any relief of maintenance to the respondent u/s 125 of the Code. It further held that the respondent apprehends threat to her life and limb and this is a reasonable excuse for her withdrawal from the society of the appellant.

Appellant''s Counsel, relying on Anna Saheb Vs. Tarabai, , Hardeep Singh Inder Singh Vs. Smt. Dalip Kaur, and Smt. Parveen Bala @ Veena v. Jagdish Rai 1988 (1) P.L.R. 579, contended that the burden of proof of issue No. 1 should have been placed on the respondent because as per the petitioner-appellant''s contention the respondent has withdrawn from his society without any reasonable excuse. In view of the Explanation added to Section 9 of the Act, the burden of proving reasonable excuse should have been placed on her. So far as this legal position is concerned, there cannot be dispute with regard to it, but, prima facie the husband has to prove that she has withdrawn from his society without reasonable excuse. After discharging this initial burden, the burden shifts to the respondent to prove that she withdrew from the society of the petitioner-appellant as there was a reasonable excuse for the same.

The petitioner-appellant examined himself, Kotu Ram and Boota Ram to support his case. Appellant''s learned Counsel contends that by adducing this evidence the petitioner-appellant has duly proved that the respondent withdrew from his society without any reasonable excuse. She made false allegation of de- mand of dowry. He is a rustic villager and it cannot be believed that he demanded a scooter because he does not know driving a vehicle. Secondly, there is no electric connection in the house of the appellant, hence even this contention is devoid of any substance that he demanded a fridge. She levelled false allegation of demand of dowry and that of cruelty against the appellant, simply to show that she had a reasonable excuse for her withdrawal. He further contends that the petitioner-appellant has proved that when the respondent left the matri- monial home, thereafter he and the members of the parichayat made several efforts to bring her back but she always declined.

Respondent''s learned Counsel contends that the Trial Court has rightly discussed in para 6 of its judgment that the case of the petitioner-appellant set up in the petition is different than the evidence adduced by him. Since the evidence is not as per his pleadings, the Trial Court has rightly disbelieved the petitioner- appellant''s evidence. The petitioner-appellant has pleaded that when he came back from Hardwar after performing last rites of his brother, he found that the respondent had already left the matrimonial home. He went to her parental home to bring her back but she declined on the ground that unless he separates from his father, she would not come back. Thereafter his father raised a wall in the residential house and gave him a separate portion to live in with the respondent. Thereupon the respondent came back lived for a week with him and again left his house with all valuables of the petitioner-appellant. He made several efforts to bring her back, convened panchayats also, but she declined to come back. However, on the oath the petitioner-appellant stated that after coming back from Hardwar, he went to his father-in-law''s house, asked the respondent to accom- pany him but she declined on the pretext that he should separate himself from his father. He has further stated that when his father separated him, thereupon also he went to her parental home and asked her to come back, but she refused, though in his pleadings he has averred that after that she came back, lived with him for a week and again left the house, taking away all his valuables. It is surprising that he has not specified what valuables were taken away by the respondent and had it been true, he would have taken some legal action against the respondent for the same. His witnesses have also tried to support him, but the Trial Court has rightly disbelieved the statement of AW-3 Boota Ram who was examined on the adjourned date.

The respondent has clearly stated that she was maltreated by the appellant and was turned out of the matrimonial home on the pretext that she should bring a fridge and a scooter in dowry from her parents. Her father Ram Chand has corroborated her. Even if the petitioner-appellant is not knowing driving, he can demand a scooter. Without any electric connection, demand for a fridge can be made. Simply on these counts, she cannot be disbelieved that the appellant demanded these articles in dowry. She is blessed with a daughter. Had her allegations not been true, she would not have left the matrimonial home. No Indian woman likes to leave the shelter of the matrimonial home and to be a parasite on her parents and after their death to live in the parental home at the mercy of her brothers and their wives. The petitioner-appellant has not assigned any reason for her withdrawal from his society. His only contention is that she wanted him to live separately. A wall was raised in the residential house to separate him, but despite this she declined to come back. This can hardly be believed. Even if the petitioner appellant is to be believed that she wanted him to live separately and he was separated by his father, thereafter there was no reason for her not to join him. That further reveals that the reason is otherwise. She has explained that reason. According to her, she was beaten up by the petitioner-appellant as she was unable to satisfy his greed for more dowry and thereupon she was turned out of the matrimonial home.

The Trial Court has also considered that as she apprehends danger to her life and limb, the petitioner-appellant, if really intended to rehabilitate her, would have given some sort of guarantee/security to satisfy her about her safety, but he never made any attempt in that direction. That further shows that his intention is not to rehabilitate her, but this petition is filed with the motive to thwart her attempt to get maintenance from him u/s 125 of the Code.

The wife is not entitled to claim maintenance from the husband if she is residing separately without any reasonable excuse as per Section 125(4) of the Code. Parties have not filed copies of pleadings in proceedings filed u/s 125 of the Code, nor any such order is on the record. Admittedly petition u/s 125 of the Code is allowed by the Magistrate, it further shows that the petitioner-appellant has utterly failed to prove even in those proceedings that she is living separately without any reasonable cause.

In view of the above discussion, I find no merit in this appeal, which is hereby dismissed with costs.