Devendra Kumar vs Arti Bai

Goutam Bhaduri, J

Heard.

The present appeal is against the judgment dated 27/01/2016 passed by Judge, Family Court, Kawardha, in Civil Suit No.14A/2014, wherein an application preferred by the wife/respondent under Section 9 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act, 1955) for  restitution of conjugal rights was allowed and simultaneously a prayer made by the husband/appellant in a counter claim under Section 23A of the Act, 1955 seeking divorce on the ground of desertion was dismissed. The appellant/husband is before this Court in appeal.

The facts of this care are that the appellant and the respondent were married on 20/06/1994 at village Jhirounidih, Tehsil Kawardha, District Kabirdham, C.G. according to the hindu rituals. During the course of time they were blessed with one daughter and one son on 20/08/1997 and 03/02/2007, respectively. The case of the wife was that she resided in the matrimonial house for some time, however, she was subjected to torture for demand of dowry and she was forced to leave the matrimonial house and was left at her parental home by the husband. It was pleaded that she was subjected to physical assault and whenever she wanted to enter in the matrimonial house, she was not allowed to enter, therefore, lastly after 11/06/2010, she was forced to live alone. Therefore, an application was filed under Section 9 of the Act, 1955 for restitution of conjugal rights. The husband filed his reply and denied all the averments and filed a counter claim under Section 23A of the Act, 1955, whereby divorce was sought for on the ground that the wife without any lawful cause has deserted the husband. It was further alleged that the wife treated the husband with cruelty and various acts were pleaded to show that she frequently used to leave the matrimonial home and also refused to discharge the obligations and herself has left the matrimonial home. Therefore, on this ground the divorce was sought for.

Learned Family Court framed the issues with respect to Section 9 of the Act, 1955 that as to whether the wife is entitled for the decree and simultaneously, if not, whether the husband is entitled for decree of divorce. The husband examined himself in this case and wife examined herself and other witnesses. Learned Court below dismissed the claim of the husband, whereby the divorce was claimed and allowed the application filed by the wife for restitution of conjugal rights. Being aggrieved by such order, the present appeal is by the husband.

Learned counsel for the appellant/husband would submit that the respondent/wife though herself has left the company of the husband without any lawful cause instead she filed the petition seeking restitution of conjugal rights. He would further submit that after 11/06/2010 the conduct of the wife when are examined in the light of the evidence, it would show that she herself had left the company and never made efforts to rejoin the company of the husband. He would further submit that the evidence of the wife in the cross-examination would show that she used to frequently go out the house of the husband without any lawful cause for a considerable period and despite that when all efforts and avenues were closed, she filed an application to over come her wrong and resorted to clamp allegation on the husband. He would further submit that the evidence on record would show that the wife without any lawful cause has deserted the husband for more than 2 years before the decree was sought for. The said averments were made in the counter claim in the year 2014. He would further submit that the learned Court below has completely misjudged to appreciate the evidence, therefore, the decree is required to be interfered with.

Per contra, learned counsel for the respondent would submit that when the application under Section 9 of the Act, 1955 was filed in counter affidavit claiming divorce on the ground of desertion, husband filed his reply. He would further submit that the said ground cannot be allowed to co-exist as it is mutually destructive to each other. He would further submit that the statement of the wife would show that she was ready and willing to join the company of the husband but husband on the ground of desertion wanted to get a decree. Therefore, the finding reached by the learned Family Court is well merited which do not call for any interference.

We have heard learned counsel for the parties, perused the documents; pleading; and evidence on record.

The marriage in between the parties is not in dispute. The evidence of the wife when are read together would show that after the marriage in the year 1994, they resided together and out of the wedlock two child were born in the year 1997 and thereafter in 2007. Though the evidence has been led by the husband that frequently the wife used to leave the company of the husband without any lawful cause but that cannot be branded as a desertion or cruelty specially in light of the fact that the second child was born on 03/02/2007. Even if for the sake, the submission of the appellant/husband is admitted on faint ground of cruelty, at the instance of the wife but the act of togetherness subsequently would lead to forgiveness and restitution and reinstatement of the relation which is evident from the fact that the child was born in the year 2007 out of their cohabitation.

The evidence of both the parties when are examined it would show that the wife stated that a demand was made about cash and motorcycle etc., therefore, she was subjected to torture and she was forced to leave the matrimonial home after assault and abuse. She further stated that when she wanted to join the company of the husband, it was resisted. In the cross-examination of the wife, when certain suggestions were given that she was not physically abused, it was denied. Certain incident was suggested about some death in relation when took place in the house, the husband went to bring her back but the wife has not admitted those facts. Instead she maintained the stand that she never left the company of the husband with a specific date of 11/06/2010. She further states that before the application under Section 9 of the Act, 1955 was filed they had conversation with the father of the husband but the family members refused to keep her.

Perusal of the record would show that the husband sought divorce on the ground of desertion. Though prior to 2010 certain incident has been stated but that would not be relevant for the reason that the husband stated that after 11/06/2010 the wife left his company. In the cross-examination at para 18 & 25 the husband stated that even if wife wanted to go along with her he would not keep her. That shows the intention of husband that he do not want to keep the wife even if she wants to join.

There is no evidence on record to show that what efforts the husband had made to restore his family instead the evidence of the wife would show that when she wanted to join the company of the husband, she was denied the entry in the house. This statement of wife is corroborated by the conduct of husband during his cross-examination. The over all assessment of the evidence, therefore, would show that when the application was filed under Section 9 of the Act, 1955 by the wife for restitution of conjugal rights, as a defence, the husband averred desertion on part of wife. Consequently, when the specific averments were made by the appellant that he do not want to keep the wife on the alternate would not be entitled to claim divorce on the ground of desertion.

In view of the aforesaid finding, we do not find any reason to interfere with the order of the learned Family Court. Accordingly, the appeal fails and is hereby dismissed.