Lokesh Chandra Katakwar vs Sarita Katakwar

Sanjay K. Agrawal, J

The appellant herein/defendant has preferred this appeal under Section 19(1) of the Family Courts Act, 1984 calling in question legality, validity and correctness of the judgment & decree dated 2-3-2024 passed by the Additional Principal Judge, Family Court, Janjgir, District Janjgir-Champa in Civil Suit No.192A/2023, by which the application filed by the plaintiff/respondent herein under Section 9 of the Hindu Marriage Act, 1955 for restoration of conjugal rights has been granted.

The aforesaid challenge has been made on the following factual backdrop: -

(For the sake of convenience, parties hereinafter will be referred as per their status shown and ranking given in the civil suit before the Family Court.)

The plaintiff/respondent herein filed an application under Section 9 of the HM Act alleging that her marriage with the defendant/ appellant herein was solemnized on 11-12-2020 as per Hindu rites and she is the legally wedded wife of the defendant and immediately after one week from the date of marriage, in order to desert her and alleging that she used to use three SIM numbers and on those SIM numbers, he is being threatened by some unknown person, the defendant started behaving with her with cruelty and withdrawn her from the society with effect from January, 2023, however, the plaintiff is ready and willing to live with the defendant and in order to give an understanding to the defendant, social meeting was called, but it is of no use and the defendant has not taken her with him and on the contrary, filed an application for divorce on the ground of desertion and cruelty and thus, the defendant has withdrawn her from the society without reasonable cause and as such, she is entitled for restitution of conjugal rights.

The defendant/appellant herein filed reply stating inter alia that immediately after marriage, the plaintiff started forcing him to live separately leaving his parents, brother and sister, which he has accepted and started living with her separately at Janjgir and thereafter, the plaintiff started threatening him on three mobile/SIM numbers in respect of which social meeting was held in November, 2022 and report was lodged on 10-2-2023 at Police Station Janjgir and the plaintiff also threatened him. Further, it was stated that the plaintiff threatened the defendant on 16-3-2023 to implicate him in cases relating to torture for dowry and Tonhi, a complaint of which was also got registered by him at Police Station Janjgir on 18-3-2023. Thereafter, on 29-3-2023, the plaintiff called her parents who came along with Narad Tamrakar, Devi Rathore and Pulu Kahra and took her to her parental village and since then, she is living separately at Saragaon. As such, the application for restitution of conjugal rights deserves to be rejected.

On behalf of the plaintiff, apart from the plaintiff (PW-1), her father Parasram Kahra (PW-2) and Bhagatram Kahra (PW-3) were examined. On behalf of the defendant, the defendant himself (DW-1), his father Gangaram Katakwar (DW-2) and Ganpati Katakwar DW-3) were examined.

The Family Court after appreciating oral and documentary evidence on record granted the application for restitution of conjugal rights finding that the defendant/husband has withdrawn the plaintiff/wife from the society without reasonable cause which has been challenged by the defendant/husband by way of this appeal.

Mr. H.V. Sharma, learned counsel appearing on behalf of the appellant herein/defendant, would submit that it is the respondent herein/plaintiff/wife who herself without there being any reasonable cause has deserted the appellant herein/defendant/husband and went to her parental house along with her father Parasram Kahra (PW-2) and Bhagatram Kahra (PW-3) on 29-3-2023. Therefore, it is the respondent herein/wife who herself has left the matrimonial home and therefore the present appeal deserves to be allowed by setting aside the impugned judgment & decree of the Family Court.

Mr. Mahendra Dubey, learned counsel appearing on behalf of the respondent herein/plaintiff, would oppose the appeal and support the impugned judgment & decree and submit that the appeal deserves to be dismissed.

We have heard learned counsel for the parties and considered their rival submissions made herein-above and also gone through the record with utmost circumspection.

The question for consideration would be, whether the appellant/ husband has withdrawn the respondent/wife from the society without just and reasonable cause?

It is not in dispute that marriage of the appellant/defendant was solemnized with the respondent/plaintiff on 11-12-2020 as per Hindu rites and they were blessed with a daughter. The plaintiff’s case is that the defendant has withdrawn her from the society without there being any reasonable cause, whereas the case of the defendant is that it is the plaintiff who had voluntarily left her matrimonial house along with her father Parasram Kahra (PW-2) and Bhagatram Kahra (PW-3) on 29-3-2023.

The Family Court in paragraph 21 of the judgment has clearly recorded a finding that on 29-3-2023, the plaintiff/wife has called her father Parasram Kahra (PW-2) and Bhagatram Kahra (PW-3) along with some other persons and they took her along with them to Village Saragaon. However, the Family Court has further proceeded to assume that there must be some abnormal circumstances which necessitated the plaintiff/wife and her father to take her to the parental house and in the course of trial also, the defendant/husband has refused to keep his wife along with him and in that view of the matter, the Family Court has reached to the conclusion that the defendant/husband without there being any reasonable cause has withdrawn his wife i.e. the plaintiff from the society. In this regard, the application for restitution of conjugal rights filed by the wife deserves to be noticed in which she has only stated that her husband has deprived her and her daughter from his company from January, 2023. There is no pleading in the plaint that on 29-3-2023, the conduct of husband created reasonable apprehension in mind of wife that it would be unsafe for her to stay with her husband and therefore she left the company of her husband. As such, it is the case where the wife/plaintiff herself has left her husband’s company/matrimonial home along with her father Parasram Kahra (PW-2) and Bhagatram Kahra (PW-3) without a reasonable cause pleaded and proved by her.

In that view of the matter, the Family Court has legally erred in granting decree for restitution of conjugal rights in favour of the plaintiff/wife. Consequently, the impugned judgment & decree for restitution of conjugal rights is set aside and the application filed by the plaintiff/wife under Section 9 of the HM Act is hereby dismissed.

14.The appeal stands allowed but without any order as to cost(s).