Promila Devi vs Amar Nath

N.C. Jain, J.—This appeal has been filed against the judgment of the Trial Court granting a decree for restitution of conjugal rights in favour of the respondent-husband. A petition u/s 9 of the Hindu Marriage Act was filed by the respondent-husband by averring that he was married with the appellant-wife in the year 1975. According to the respondent, the appellant has withdrawn from his society without any reasonable cause. She is alleged not to have returned to the matrimonial home despite many letters having been written by the respondent.

The appellant-wife contested the betition for restitution of conjugal rights on the grounds that the respondent-husband was guilty of practising cruelty upon her. It was averred by the wife that she was unable to give birth to a child for 5/3 years after her marriage and that she was called barren. The husband was alleged to have not taken care of the health of the wife when the first child was born to her who ultimately expired. It was further the case of the wife that the husband committed sexual acts even during the menstrual period The wife further took a stand that the respondent-husband disclaimed the second child who was born in Lucknow hospital by saying that the child was not from him.

The Trial Court framed the following issues:-

Whether the respondent has withdrawn from the society of the Betitioner without any reasonable cause as alleged? OPP,

Relief.

During the course of trial, respondent examined himself as PW 1 in support of the averments made in the petition for restitution of conjugal rights He has stated that the respondent wife withdrew from his society without reasonable cause and that she did not come back to his house inspite of the fact that several letters were written to her. He has furtuer stated that he has been sending money to the wife. It was further stated by him in the witness box that a petition u/s 10 of the Hindu Marriage Act was filed by her which was dismissed. The appellant-wife in her statement as RWl supported the stand taken by her in the written statement. The Trial Court allowed the petition of the respondent-husband by holding that all the pleas taken by the appellant-wife regarding cruelty etc. did not find favour in judgment Ex AX when she filed a petition for judicial separation u/s 10 and u/s 13 of the Hindu Marriage Act for divorce.

After hearing the learned Counsel for the parties and after perusing the enitre record, this Court is of the considered view that there absolutely nothing in the appeal. A bare perusal of the judgment rendered in petition under Sections 10 and 13 of the Hindu Marriage Act, filed by the appellant-wife shows that virtually the stand taken by her in the present case is similar to the stand taken by her in the previous proceedings All the pleas taken by her in the present case were negatived in the previous case.

The allegation that the husband proclaimed that the second child did not belong to him is not substantaited from the evidence produced on the record of the case. The husband would not have snatched the child as was sought to be contended by the wife if he sincerely thought that the child did not belong to him. The husband would take the child only if he considered the child to be his and not of a third person. The averment made in the written statement by the wife is that she was subjected to sexual intercourse during the delivery of the first child and during the menstrual period, is not proved as she did not make a statement to this effect while appearing in the witness box The factum of birth of the children i.e. the first child at Visakhapatnam and that of the second child in Military Hospital, Lucknow, proves that the husband took care of the wife. Had the husband not taken the care of the wife the two children would not have been born at the Military Hospital i e at the place of posting of the husband. The wife has not deposed clearly '' about the carelessness of the husband. There is nothing wrong with the finding recorded by the Trial Court that the documentary evidence proves that the husband had been sending money to the wife. In fact, the wife has admitted that she received a sum of Rs. 200/- from the husband. She admitted her signature on document Ex. PB vide which she received the money thorugh money order The wife has further admitted that neither she nor her parents went to the husband with respectables for reconciliation or compromise. The aforesaid statement of the wife proves her unwillingness to live with her husband. The inconsistent stand taken by the appellant forming the basis of findings recorded in para No 15 of the judgment of the Trial Court, also shows her unwillingness upon her part to rejoin the husband. The findings read as under :

"Statement of Promila Devi is inconsistent to the statements of the other witnesses appearing on-her behalf. Promila Devi says that she performed the mundan ceremony of her son, but the petitioner did not care to attend the ceremony inspite of the fact that she had written letter to him, but this fact has not been admitted by her uncle RW 2 Birju. He says that it is not within his knowledge whether Promila Devi had performed the mundan ceremony of her son Promila Devi says that neither she nor her parents made any effort for compromise with the petitioner, nor anybody went to the house of the petitioner for reconciliation, but this fact has been denied by RW 2 Birju. He says that he went to the in-laws of Promila Devi for compromise and that he has also taken Promila to the house of her in-laws. He also stated that once he went there along with the respectables of the village for the rehabilitation of the respondent and that he took Promila Devi with him at that time. RW-3 Rattan Chand says that Promila Devi was thrashed two times by the petitioner and that he treated her with cruelty but all these facts have been denied by him in his cross-examination wherein he says that he never saw Amar Chand and Promila Devi quarreling with each other".

For the reasons recorded above, the appeal filed by the appellantwife is found to be devoid of any merit and the same is consequently ordered to be dismissed with no order as to costs.