Jaswinder Kaur alias Simerjit Kaur vs Kulwant Singh

K.S. Tiwana, J.—This appeal has been filed by Shrimati Jatwinder Kaur against the decree for restitution of conjugal rights u/s 9 of the

Hindu Marriage Act, 1955 passed against her by the Subordinate Judge 1st Class, Faridkot.

Kulwant Singh respondent approached the court of Sub-Judge 1st Class at Faridkot stating that he had been married with the petitioner in

December, 1971 and out of their wedlock one female child had been born. The parties lived together as husband and wife at his village Machaki

Khurd till March, 1974 when the appellant without any reasonable excuse withdrew from his society and went to live with her parents. The

respondent further averred that his efforts to bring back the appellant to his-house with the help of the village Panchayat did not bear any fruit. He,

therefore, filed the present petition for a decree of restitution of conjugal rights against the appellant so that she could come and live with him as

wife in his house.

The appellant in her written statement admitted the marriage and the birth of the child but denied the rest of the contents of the petition. She

averred that the respondent was pressing her to bring more money. He had been taunting her for the meagre dowry which she had brought As her

parents were not financially affluent they could not meet the demands of the respondent She was maltreated and turned out of the house The

factum of the taking of the Panchayat by the respondent to her was denied.

The learned trial Sub-Judge framed the following issues in the case:--

(1) Whether the respondent has withdrawn from the society of the petitioner without reasonable cause as alleged ?

(2) Relief.

Both the parties led evidence in support of their respective claims. The learned trial Judge, however, did not feel satisfied with the case of the

appellant about her allegations of maltreatment and forcibly turning out of the house. On the other hand he believed the case set up by the

respondent that the appellant was pressing him to live separately from his parents. He arrived at a conclusion that it was the appellant who was a

defaulting spouse and was not willing to fulfil her matrimonial duties. Accepting the case of the respondent he passed a decree in his favour which is

the subject matter of appeal.

I have heard the counsel for the parties and have gone through the judgment under appeal. According to the language of the issue it was for the

appellant to prove the circumstances which could justify her living away from the respondent or her withdrawal from his society. The plea which

she raised at the trial was that she was given beating by sticks by the respondent. She was kicked by his mother and pushed by his father. A

perusal of the written statement shows that no such allegations was made therein. In the written statement it was only stated that the respondent

was making a demand for dowry and was taunting her on that account. The maltreatment referred in the written statement was not specified. I have

no hesitation in saying that this plea was raised by the appellant at a late stage of the case only to put forward some justifying grounds in support of

the stand taken by her. This plea was much belated to be taken into consideration and the learned trial Judge rightly ignored it.

The only plea which subsists for decision is whether the respondent was guilty of taunting or torturing her by his conduct amounting to cruelty

when she lived with him in his house as his wife. In her statement which the appellant made in support of her case, she did not state if the

respondent had ever done such a thing. In that she only stated that her mother-in-law and father-in law used to complain about the insufficiency of

the dowry brought by her. The allegations made in the written statement and her statement are inconsistent. No such accusation was made against

the father-in-law and the mother-in-law in the written statement. Even this part of the evidence led by her is unsatisfactory. The discrepancies in the

oral evidence led by her were taken note of by the learned trial Subordinate Judge. Her witnesses were not consistent about the presence of the

respondent in the house at the time when the alleged Panchayat had gone to his house. One of the witnesses stated that he was away from the

village and the other tried to improve the matter by stating that he came to the house later on. The witnesses were not informed about the presence

of the appellant with the Panchayat. Such evidence which lacked consistency and cohesion was not rightly given the serious consideration by the

learned trial Judge. On the other hand the case of the respondent from the very start was that the appellant insisted upon him to live separately from

his parents. Although the respondent in his heart of hearts did not want to opt for that but under pressure and demand of the appellant he agreed

and got an offer made from the Panchayat that if the appellant came to him he would live separately from his parents. The evidence of the

respondent which was not been shaken on this point by the appellant has remained consistent that inspite of the respondent''s agreement to have a

separate residence for the appellant she did not come. In matrimonial cases when the spouses lose love for each other and go to make allegations

against each other then the Courts have to assess and examine their conduct to find out as to which of the spouses is guilty of giving offence to the

other or undermining the congenial atmosphere of a matrimonial life. On close scrutiny of the facts and circumstances of the case I find that it is the

appellant who is guilty of such a conduct and has without any reasonable excuse withdrawn from the society of her husband, the respondent. The

learned trial Court on sound reasons has returned a finding against her which does not require to be disturbed at the hands of this court.

For the foregoing reasons, the appeal is dismissed with costs.