Dasoda Devi @ Gendarani vs Chunna

B.N. Lal, J.—This is wife''s first appeal u/s 28 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act), against the Judgment &

Decree dated 25.1.1986, whereby the learned District Judge, Damoh passed decree for restitution of conjugal rights u/s 9 of the Act in favour of

the Respondent/husband.

The short facts leading to this appeal are as under :

The respondent brought an action against the appellant/wife claiming decree for restitution of conjugal rights u/s 9 of the Act. According to the

plaint averments, marriage between the spouses was solemnized in the year 1974 in village Khamaria Tehsil Hata, District Damoh according to the

Hindu customs and rituals prevailent amongst the Kachchi caste of Damoh district. The parties consumated their marriage by cohabiting in village

Ronda, for about 8 years. However, in the month of June, 1982, the appellant deserted the respondent and did not return to village Ronda despite

several attempts were made by the husband including service of a registered notice dated 5.3.1984.

The appellant/wife, instead of replying to the notice dated 5.3.1984, demanded maintenance amount to the tune of Rs. 300/- per month.

Therefore, it was alleged that it was the wife who deprived the husband of his conjugal rights, and on these facts the petition u/s 9 of the Act,

seeking decree for restitution of conjugal rights, was filed.

The appellant in reply to the petition submitted that she was being ill-treated with cruelty and the respondent in the month of June, 1982 turned

her out after snatching all the ornaments and battering. Under these circumstances she could not return to the marital home. It is also contended

that in between the respondent/husband never made any attempts to bring her back. She further pleaded that this all has been done deliberately by

the respondent to keep her aloof and taking advantage of the situation to enter into a second marriage. She also apprehended that her life would

not be safe and even she might be done to death, if she returned to her marital home.

The learned District Judge, on the basis of the pleadings of the respective parties framed an issue relating to alleged cruelty :

If it could give reasonable apprehension to the wife that it would not be safe for her to live with her husband ?

and, on discussing the evidence relating to cruelty, as pleaded by the wife, the learned district Judge reached the conclusion that no case is made

out to hold that there was any reasonable ground for the wife to deprive the husband of his conjugal rights by not discharging her marital

obligations, and hence decreed the suit for restitution of conjugal rights, against which this appeal has been filed,

The husband/respondent before this Court, though served, remained absent. S.P.C. was also issued for fixed date of hearing, but the same has

not been respondent to. by the husband.

On behalf of the appellant an application vide l.A. No. 1250/90 has been filed u/s 13(1)(a)(ii) of the Act, praying for dissolution of marriage by

a decree of divorce on the ground that there has been no restitution of conjugal rights between the parties for a period of two years and onwards

after passing the decree impugned restituting the conjugal rights.

In the opinion of this Court, this application deserves to be rejected outright, inter alia, on the ground that -firstly, there is no evidence on record

to establish that there has been no restitution of conjugal rights between the parties for a period of two years or onwards after the decree restituting

the conjugal rights was passed. Therefore, for want of any cogent evidence, it is difficult to accept the contention of Shri Samaiya for grant of

decree under the provisions of Sec. 13(1) (a)(ii) of the Act. Secondly, the right conferred by Section 13(1) (a)(ii) of the Act is subject to the

provisions of Sec. 23(1) of the Act, hence, it is open to the Court to refuse a decree of divorce on any of the grounds specified under Sec. 23(1)

of the Act. Besides this, there is no legal impediment for filing a separate suit claiming such relief. This being so I.A. No. 1250/90 is rejected.

Learned counsel Shri Samaiya then contended that he had also filed an application u/s 24 of the Act claiming maintenance pendente lite vide I.A.

No. 4141/87, and till the said application is decided and maintenance is paid by the respondent, this appeal is not liable to be proceeded with and

decided finally. But, according to him, the appeal is liable to be kept in abeyance on this ground. In support of his contention, Shri Samaiya

referred to the decision of this Court rendered in Bhuneshwar Prasad Vs. Dropta Bai,

The ratio laid down in Bhuvneshwar Prasad''s case (supra) is distinguishable, wherein order for payment of maintenance pendente lite was

passed but the husband circumvented the same. In that circumstances it was held that without making payment of maintenance pendente lite the

matrimonial action cannot be proceeded with. But such is not the situation here. In the instant case simply an application for maintenance pendente

lite has been filed which is on record, and till today no order has been passed granting maintenance to the wife. This being so, this submission of

Shri Samaiya also fails.

Now coming to the merits of the appeal, learned counsel contended that the Lower Court mis-apprehended and mis-appreciated the evidence

on record and as such has mis-directed itself while arriving at the correct decision.

Perusal of the written statement demonstrates that it was the wife who deserted the husband by withdrawing herself from the society of the

respondent. However, she tried to justify the same by asserting that on account of ill-treatment and cruelty and driving her out, she did not return,

apprehending danger to her life.

No doubt, burden of proving conditions anumerated in sub-Section (1) of Section 9 of the Act rests on the petitioner,'' and the petitioner has

to succeed on the strength of his own case and cannot take advantage of the weakness of the defence. But the explanation to Section 9 of the Act

shifts the burden of proving & establishing reasonable excuse for withdrawal, to the appellant who asserts that she did not return on account of

such apprehension that if she returns her life would be in danger as she was mal-treated by the respondent.

To substantiate her submission, the appellant examined herself, Pancham Singh (NAW-3) and Tantu (NAW-3) The learned District Judge -

having taken into consideration the statements of these witnesses passed the decree for restitution of conjugal rights.

Tantu (NAW-3) is the cousin of the appellant and according to his statement, only once he heard Dasoda Bai crying, but he did not go to the

place from where the sound of crying was coming. Therefore, the learned lower Court rightly came to the conclusion that testimony of this witness

is of no avail to the appellant. Similarly Pancham (NAW-2) is a chance witness. Averments made about ill-treatment have also not been supported

by any cogent evidence as no medical evidence has been brought on record. Even it has not been proved that any report was lodged to the police

station about ill-treatment by the husband. This apart no neighbour living in the same vicinity has been examined. Therefore, in the absence of any

such evidence, it is difficult to accept the contention of the appellant that she was being ill-treated and subjected to cruelty which pursuaded her to

withdraw herself from the society and company of the respondent/husband. In such circumstances, in the opinion of this Court, the learned District

Judge has rightly reached the conclusion that there is no reasonable apprehension creating least doubts in the mind of the appellant/wife that her life

would be in danger if she returns to her marital home.

Conduct of the spouses is of relevant consideration for passing a decree under the'' Hindu Marriage Act, particularly, where the spouses make

allegations against each other. In such cases, a duty casts upon the Court to assess and examine the conduct of the parties to find out as to which

of the spouses is guilty of under-mining conjugal atmosphere. Judging from this angle, the learned District Judge has rightly reached the conclusion

in the instant case that the attitude of the appellant/wife is unreasonable and truculent, while granting the decree for restitution of conjugal rights.

From the discussions aforesaid, this appeal fails and is hereby dismissed. No order as to costs.