Radhey Shyam vs Bhagwati Bai

J.K. Ranka, J.—This civil misc. appeal under section 19 of the Family Court Act, 1984 has been filed against the judgment and decree dated 21.7.2011 passed by the Judge, Family Court, Kota in Civil Misc. Application No. 348/2007 whereby the application filed by the appellant for restitution of conjugal rights has been dismissed.

Brief facts of the case are that the appellant filed an application under section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights before the learned Judge, Family Court, Kota stating therein that his marriage was solemnized with respondent about 9 years back. On 18.4.2007, respondent deserted the house of the appellant-husband after taking her ornaments along with Rs. 50,000/-. It was further averred that the appellant went several times to bring his wife but the father of respondent-wife refused to send her with him. Appellant asked his wife to return the money then she told that as and when the same would be arranged she will accompany with him. That on one day, during the stay at night at the house of father-in- law, he was maltreated and warned that if he again tried to visit them then he will face dire consequences.

The respondent-wife controverted all allegations and it was stated that appellant always misbehaved with her like animal and several times she was beaten severely. She instituted a case for offence under domestic violence and the appellant was restrained by the court. All the ornaments have been returned and further stated that she never brought Rs. 50,000/-with her and to save himself from the clutches of liability of maintenance it was so alleged. Appellant and his son both frequently terrorize her hence she has apprehension that she will not be safe with appellant in future.

The learned Judge, Family Court, on the basis of pleadings of the parties framed three issues. Issue No. 1 and 2 were in relation to leaving house by the respondent-wife without any rhyme or reason and passing decree of conjugal rights in favour of the appellant. The appellant examined himself as AW-1 and two witnesses namely Prabhulal as AW 2 and Heeralal as AW-3 respectively. The respondent wife examined herself and NAW 2 Mohan Lal.

After close of evidence, learned Judge, Family Court upon hearing both sides rejected the application vide its judgment and decree dated 21.7.2011. Hence, the present appeal.

Learned counsel for the appellant contended that the appellant tried his best to keep the respondent-wife with him and is still very keen to keep the respondent with him and showing the gesture of keeping the respondent with him is sufficient ground under section 9 of Hindu Marriage Act, 1955. He further contended that the compromise has been entered between both of them earlier on 26.10.2004 and 15.03.2008 by which the appellant agreed to take the respondent with him and that he would continue to keep the respondent happy in all respect and will not fight with her and will give due amount for her maintenance as well. He further contended that there is no justification for rejection of the application filed under section 9 of the said Act. Thus, he contended that order passed by the Family Court be set aside.

Per contra, learned counsel for the respondent contended that the order passed by the Family Court is well reasoned and justified. He further contended that the appellant has not adhered to the terms and conditions of the affidavit (agreement) which he executed on 26.10.2004 and 15.03.2008 and despite stated by the appellant, the respondent still was maltreated and beaten. The appellant kept on fighting with the respondent and did not adhere to any of the terms of the conditions mentioned in the aforesaid affidavits. He further contended that the attitude of the appellant with the respondent worsened and she had to file an application u/S 107/15H 16(3) of Cr. P.C. and the Addl. District Magistrate, Kota (City) vide order dated 3/6/2009 restrained the appellant not to disturb the mental peace of the respondent. In pursuance thereto, the appellant also gave personal bond and affidavit.

Counsel further contended that despite compromise being entered into twice, still the appellant kicked the respondent out of her matrimonial home after severely beating her. It is after repeated beating and denial of family peace, the respondent filed application u/S 12 and 23 of the Protection of Women from Domestic Violence Act, 2005 which was registered as case No. 21/2009.

Learned counsel for the respondent relied upon judgments of Hon''ble Apex Court in the case of Samar Ghosh Vs. Jaya Ghosh, (2007) 3 CTC 464 : (2007) 1 DMC 597 : (2007) 5 JT 569 : (2007) 146 PLR 618 : (2007) 5 SCALE 1 : (2007) 4 SCC 511 : (2007) 4 SCR 428 , K. Srinivas Rao Vs. D.A. Deepa, (2013) 3 AD 458 : AIR 2013 SC 2176 : (2013) 1 DMC 458 : (2013) 3 JT 97 : (2013) 171 PLR 149 : (2013) 2 RCR(Civil) 232 : (2013) 2 SCALE 735 : (2013) 5 SCC 226 : (2013) AIRSCW 1396 : (2013) 2 Supreme 80 . He further relied on the judgment of this Court in the case of Rajesh Meghwal v. Sharda in DB Civil Misc. Appeal No. 4243/2009 decided on 27/9/2010 and Sohan Sankhala v. Smt. Lakshmi Parewa 2005(4) RLW 227. He also relied on the judgment of Punjab and Haryana High Court in the case of Vijay Kumar Vs. Suman @ Pritam Devi, (1996) 1 DMC 363 : (1995) 111 PLR 589 and Anil Kumar Vs. Kiran Bala, (1998) 2 DMC 222 , judgment of Madras High Court in the case of T.S. Malathi v. B. Arulmurugan in C.M.A No. 1742 and 1743 of 2010 decided on 17.6.2011, judgment of Kerala High Court in the case of S. Jayakumari Vs. S. Krishnan Nair, AIR 1995 Ker 139 : (1995) 1 DMC 48 : (1995) 1 ILR (Ker) 664 : (1994) 2 KLJ 762 ,

He further contended that there is no justification for filing the present appeal and the Family Court has rightly dismissed the application filed by the appellant.

We have considered the rival submissions made by the learned counsel for the parties and perused the impugned order as well as judgments relied upon the counsel for the respondent.

Admittedly, on account of second marriage (Nata) about 11 to 12 years back, both the parties remained together for 5 to 6 years but since then are living separately and admittedly despite on two occasions, the parties entered into compromise and agreed that the respondent will be kept well but the appellant did not adhere to the terms and condition which was compromised in between both the parties. The appellant even gave in writing that he will keep the respondent in a befitting manner like a wife and will not beat her and will not inflict untoward incident on her and will keep her properly and provide other facilities to her as a husband normally does and would provide best of education to the son Girraj. It was further agreed that son Girraj along with other three sons would have equal share in the movable and immovable properties of the appellant. However, the sons of appellant did not agree to the terms and conditions and on the contrary the appellant as well as his son Badri Lal beaten the respondent repeatedly and even ADM City, Kota on the application filed by the respondent under section 107/151 Cr.P.C granted protection, restraining the appellant not to interfere in the peaceful life of the respondent.

It would also be appropriate to quote the three agreements Ex. 3/1 dated 7.5.1999, Ex. A-1/1 dated 26.10.2004 and Ex. A/1 dated 15.3.2008 executed by the appellant in favour of respondent which were not acted upon in letter and spirit rather reverse of what was stated, which reads as under:--

Section 9 of the Hindu Marriage Act, 1955 reads as under:

"Restitution of conjugal rights.-When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.

Explanation- Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society."

In the case of Samar Ghosh v. Jaya Ghosh (supra), the Hon''ble Apex Court has held that the cruelty is a state of mind reiterating certain illustrative cases where inference of "mental cruelty" can be drawn. The relevant para reads as under:

"101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of mental cruelty. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive:

(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.

(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.

(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.

(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.

(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.

(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.

(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty. It is pertinent to note that in this case the husband and wife had lived separately for more than sixteen and a half years. This fact was taken into consideration along with other facts as leading to the conclusion that matrimonial bond had been ruptured beyond repair because of the mental cruelty caused by the wife. Similar view was taken in Naveen Kohli."

In the case of K. Srinivas Rao v. D.A. Deepa (supra), not only the court adjudged the above points of mental cruelty but also added few more points namely making unfounded defamatory allegations against spouse or his relatives in pleadings, filing repeated false complaint or issuing notices or news items which may have adverse impact on the business prospects or the job of spouse and filing repeated complaints and cases against spouse in the facts of the case amount to causing mental cruelty.

This Court in the case of Rajesh Meghwal (supra) after appreciating the evidence on record wherein the wife has alleged that she had filed a complaint and also in her statement she stated that she was severely beaten on several occasions, that on account of beating, abortion took place. She remained under treatment for about one month and a complaint was lodged under sections 498A and 406 IPC and after noticing the aforesaid fact, this Court was of the opinion that the relation between husband and wife was not cordial and thus was of the view that the order passed by the Family Court rejecting application under section 9 of Act, 1955 was just and proper.

Thus in view of the above facts as noticed hereinabove and the judgments, in our view it is apparent that she (wife) got hatred as against love. She was expecting protective umbrella of matrimonial home but that was not provided to her. She (wife) was beaten and turned away from the house not only by the appellant but by his son and instead of harmony, the respondent was maltreated by appellant and his son. Despite of compromise arrived at twice, still there was no improvement in the attitude of the appellant, the appellant cannot be allowed to take advantage of his own wrong and apprehension of wife to join the appellant cannot be held unfounded on the face of the order of ADM, City Kota who bound the appellant on the application having been filed by respondent.

In view of above material, the evidence which has been led by the parties, is not sufficient to allow the application moved for passing a decree for restitution of conjugal rights in his favour.

The learned Judge, Family Court while deciding both the issues has discussed the evidence in detail. There does not appear a reason to take a view different than what has been taken by the learned Judge, Family Court while deciding the issues against the appellant. The arguments raised by the learned counsel for the appellant have no merits inasmuch as there does not appear any illegality in the judgment and decree passed by the learned Judge, Family Court, Kota. The appeal being devoid of merit is liable to be dismissed and accordingly dismissed.