SHRI PRAVEEN ETTA vs SMT.SAVITHRI ETTA

The appellant has filed this appeal under Section

19(1) of The Family Courts Act, 1984, challenging the judgment

and decree passed by the Principal Judge, Family Court at Ballari

dated 15.12.2015 in Matrimonial Case No.68/2015 decreeing the

suit and ordering for restitution of conjugal rights in favour of

the respondent herein.

In his memorandum of appeal, the appellant has

taken the contention that the judgment and decree under appeal

is opposed to law and facts and evidence on record and the

learned Judge has passed the judgment without application of

judicious mind and in the process, he has failed to note the

scope of Section 9 of Hindu Marriage Act, 1955 (for brevity

henceforth called as ''the Act''). Since the respondent is working

as a Teacher in a Government School at Bidar District and the

appellant is staying at Secundarabad, it requires 5 to 6 hours to

reach Secundarabad from Bidar. Though she had promised that

she would resign from the job, but she did not keep up her

promise. It is the respondent who has withdrawn from the

company. The respondent could have joined some job at

Secundarabad, which she did not do. If she continues to stay at

Bidar District, she cannot lead meaningful life with him, hence,

he has prayed to set aside the judgment and decree under

appeal.

In response to the notice, the respondent is being

represented by her Counsel. Lower court records were called for

and the same was placed before us.

Heard arguments from both the sides. Perused the

material placed before us including memorandum of appeal, the

impugned order and the lower court records in detail.

In light of the above, the following points arise for

our consideration:

"1. Whether the petitioner before the Court below had made out grounds for a decree in her favour?

Whether the judgment and decree under appeal warrants any interference at the hands of this Court?

What Order?"

My findings to the above points are as follows:

1) Negative

2) Negative

3) As per the final order for the following reasons:

REASONS:

Point Nos.1 and 2: In order to avoid the repetition of analysis

of facts and for simplicity, both these points are taken up

together for reasoning.

The respondent herein was the petitioner in the

Court below and the present appellant was the sole respondent

there at. For convenience, the parties would be referred with

the rankings they were holding in the Court below respectively.

The petitioner-wife filed a petition under Section 9 of

the Act in the Court below seeking the relief of restitution of

conjugal rights against her husband - the respondent. The

summary of the petition averments was that she is the legally

wedded wife of respondent since from the date of their marriage,

which was held on 14.06.2012 at Secundarabad. For about 3

months after their marriage, they lived happily. Thereafter, the

respondent and his family members started ill-treating her. She

continued to tolerate all the ill-treatment. The respondent also

started demanding dowry from her and threatened her stating

that he would undergo second marriage with some other girl.

She was working as a teacher in the Government High School at

Bunguru Village, Bidar District, Karnataka. The respondent and

his parents started insisting her to resign the said job as they did

not want her to work. At the instigation of respondent, she gave

resignation letter on 08.08.2012, but the school authorities did

not accept the same. Her husband has got good source of

income with a salary of Rs.70,000/- per month. On 06.04.2013,

the respondent intentionally and deliberately put her in one of

the houses of his sister at Secundarabad. Thereafter, he

stopped all sorts of communication with her and also forced her

to stop all communication with her parents and her relatives. He

was also pressurizing her to write suicide note. He further made

her to live separately showing unreasonable excuses. Several of

her requests to take her back to matrimonial home went in vain.

She filed a complaint before the Women''s Police Station at

Begumpet, Secunderabad on 05.06.2013. At the conciliation

efforts of the police, the respondent took her to his house, due

to which, she lived with him till 13.08.2013. Without her

knowledge, he had filed a petition in FCOP No.441/2013 seeking

judicial separation. He started exhibiting his cruel attitude

towards her and also started assaulting her continuously. On

13.08.2013, respondent and his family members ultimately

threw her out of the house, as such, she came back to Ballari

and started residing in the house of her parents. The

respondent did not make attempt to take her back once again,

as such, he deserted her without any valid reasons. She is

ready to join him and to lead happy married life.

The respondent-husband filed his statement of

objections in the Court below. He denied all the allegations

made against him, except admitting his marital relationship with

the petitioner. He took a defence that during the marriage

communication, it was made known to the petitioner that he

wanted to marry a girl from poor family as such he has agreed

to marry her. The petitioner had agreed to quit the job at Bidar

and take up a job at Secundarabad, where he was working.

From the day of their honeymoon, she was taunting, abusing

and pressurizing him to leave his joint family and arrange for a

separate residence, for which he did not agree. She gave

torture to his father, due to which, his father suffered with brain

haemmorrage and died after 9 months while in coma. His

mother is also suffering with health problem due to the acts of

the petitioner. She has never shown minimum courtesy towards

his sick parents, she was always interested in financial status

and thinking of high profile life. She did not accede to his

insistence and to settle at Secundarabad. After working for a

short duration at Secundarabad in a Junior College and Airtel

Office, she was terminated from her services in both the places.

She was threatening him by saying that she would commit

suicide. She filed a false complaint against him and his parents

on 05.06.2013 and on 13.08.2013, created a scene by

threatening to commit suicide and left the matrimonial home.

Hence, he was constrained to file petition in FCOP No.441/2013

for judicial separation. However, subsequently, he withdrew the

said petition, but he filed another petition for divorce in OP

No.345/2015, which is pending before the Family Court at

Secundarabad. Further, stating that it was the petitioner who

harassed causing much cruelty and humiliation and voluntarily

deserted his house, he prayed for dismissal of the suit.

Both the sides led evidence and produced

documents. After hearing both the sides, the Court below by its

judgment and decree dated 15.12.2015 decreed the suit

directing the respondent-husband to take back the petitioner-

wife to his house within 60 days from the date of judgment. It is

this judgment and decree, the respondent-husband as an

appellant, has challenged in this appeal.

The petition in the Court below was filed under

Section 9 of Hindu Marriage Act, 1955. The said Section reads

as below:

"9. 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."

A person seeking restitution of conjugal rights in

order to get a decree has to prove two things:

(i) that the respondent has withdrawn from the society of the petitioner; and

(ii) that the said withdrawal has been without reasonable excuse.

The word ''excuse'' appears to have been advisedly

used. It is something within the justification and something

morethan a mere whim of the respondent. It is a fact, which has

to be determined with reference to the respondent''s state of

mind in the particular circumstances of each case. It is now

settled that the foundation of the right to bring a suit for

restitution of conjugal rights is one of the primary rights of

matrimonial law that, one spouse is entitled to the society and

comfort of the other spouse and where either of the spouse has

abandoned or withdrawn from the society of the other without

reasonable excuse or just cause, there should be a decree for

restitution of conjugal rights. The burden of proof of withdrawal

from the spouse in the society is on that spouse who withdraw

from the society and refused to discharge his/her marital

obligation.

In the instant case, it is not in dispute that the

petitioner and respondent are the husband and wife whose

marriage was performed on 14.06.2012 at Secundarabad. It is

also not in dispute that after living together for a short period,

they are now living separately. According to the petitioner, it

was only upto 13.08.2013 they lived together and on that day,

the respondent and his family members ultimately threw her out

of her house, as such, she came back to Ballari and started

residing in the house of her parents. On the other hand, the

respondent-husband has contended that on the said date i.e. on

13.08.2013, the petitioner-wife created a scene and threatening

to commit suicide left the matrimonial home. By this, it is

established that from 13.08.2013, till date, they are residing

separately. According to the respondent, the petitioner since is

serving in the District of Bidar as a Teacher in a Government

School, she cannot even come and stay with him.

Though it is not in dispute that she is serving as a

Teacher in Bidar District, but her constraint to stay away from

her husband for the time being, without much discussion on the

point can be said that, would fall within the ambit of "reasonable

excuse" under Section 9 of the Act. But it does not mean that

merely her job requirement since prevents her form joining her

husband every day that culminates in forfeiting her right to claim

restitution of conjugal rights.

The petitioner-wife got herself examined as PW1 in

the Court below, wherein in her examination-in-chief, she has

re-iterated the contention taken up by her in her petition. She

has stated that on 06.04.2013, the respondent-husband

intentionally and deliberately put her at his sister''s house at

Secundarabad only for the reason that she was still continuing to

be working and did not resign. According to PW1, he did not

bother to take her back despite her request, which made her to

approach the police and lodge a complaint in the Women''s Police

Station at Begumpet, Secundarabad. The police held counseling

for both the husband and wife, due to which, the respondent-

husband took her back to his house, where she lived upto

13.08.2013. It was on the said day, the respondent joined by

his mother and sister threw the petitioner away from their house

once for all. Thus, she was compelled to join her parents and

stay with them at Ballari. She has further stated that in the

meantime, he had also filed a petition in FCOP No.441/2013 in

the Family Court at Secundarabad under Section 10 of the Act

for judicial separation. However, the said petition came to be

withdrawn on 23.04.2015. She has also got produced the

certified copy of the said order, which is marked at Ex.P4.

In the meantime, as could be seen from Ex.P5, the

petitioner had approached the Hon''ble Supreme Court in

Transfer Petition (Civil) No.598/2014, wherein the Hon''ble Apex

Court by its order dated 10.10.2014 had passed an interim order

of staying the further proceedings in FCOP No.441/2013. In the

cross examination of PW1, her evidence to the effect that she

was left in one of the sister''s house of respondent at

Secundarabad and the statement by PW1 that she lodged a

police complaint on 05.06.2013 and that they held conciliation

by virtue of which they continued to live together for a very

short further period, has not been denied. The said police

complaint has been marked as Ex.R5. In the cross examination

of PW1, it was suggested that the petitioner had agreed to

resign from her Government job, but she did not keep her

promise, which suggestion was not accepted as true by PW1.

The respondent-husband has been examined as RW1

and in his examination-in-chief also, he has re-iterated the

contents of his statement of objections to the petition. In his

examination-in-chief and further examination, he re-iterated and

alleged that the petitioner had promised that she would resign

from her job immediately after her marriage, but she did not

resign the job. In his cross examination, he has made it very

clear that due to the conduct of petitioner, it has become

impossible for him to stay with her and he has also filed a

petition seeking dissolution of marriage.

From this evidence of the parties, it can be inferred

that the respondent-husband and his family members never

wanted the petitioner to continue to work in Government service

at a different place. When they could not ensure that she would

resign and join the petitioner, the respondent decided to live

separately from her, as such, he proceeded in filing a petition for

the relief of judicial separation in FCOP No.441/2013. Had

really, the petitioner wanted not to stay with her husband and to

be away from her matrimonial house, she would not have lodged

the complaint with Women Police Station at Begumpet,

Secundarabad on 05.06.2013.

It is not in dispute that by virtue of the conciliation

held by police, she was taken back to her matrimonial house.

This clearly goes to show that the petitioner-wife is interested

and putting her effort to join her husband and to lead a happy

marital life. Thus, the act of keeping the petitioner-wife at a

separate place in one of the houses of his sister at Secundarabad

and further filing a petition seeking the relief of judicial

separation clearly goes to establish that respondent-husband''s

withdrawal from the society of his wife was without any

reasonable excuse.

The statement of objection by the respondent and

his examination-in-chief as RW1 further goes to show that he

attributed the death of his father and alleged ill-health of his

mother to the behaviour of the petitioner. However, in the cross

examination of RW1, it was elicited that his father died at the

age of 70 years and that he died due to high blood pressure.

Before his death, he had slipped and fallen in the bathroom. The

witness voluntarily added stating that due to high blood

pressure, his father had fallen in the bathroom. Similarly, in the

cross examination of RW2, the mother of respondent also it was

elicited that at the time of death of her husband, he was aged 72

years and that he had fallen in bathroom. The doctor told that

due to brain haemmorrage, he had fallen in the bathroom. From

this it becomes clear that the cause for the death of his father

was something different and it may be probably due to his high

blood pressure, but not as alleged by the respondent stating the

ill-treatment or neglect by the petitioner.

So far as the alleged ill-health of the mother of

respondent is concerned, the said mother as RW2 in her cross

examination has stated that since 10 years, she has been

suffering from high blood pressure and diabetes. The said cross

examination had taken place on 04.12.2015. Thus, according to

RW2 herself from the year 2005, she has been suffering with

those ailments, whereas the marriage of petitioner with the

respondent was solemnized on 14.06.2012 i.e., 7 years after the

alleged ill-health of the mother of respondent. From this, it is

clear that the alleged misconduct of the petitioner is not a

reason for ill-health of the mother of the respondent. On the

contrary, it can be inferred that the respondent is trying to find

some fault with the petitioner by making various allegations of

misconduct against her.

In addition to the above, another reason which the

respondent-husband assigned for living separately from his wife

is her alleged writing of a suicide note. Incidentally, the said

note has been produced and marked by the respondent-husband

himself at Ex.R3. The said document is extracted in its entirety

as below:

"Thanks geeta akka nee purse your gift box return teskonedante. Thank you thanks a lot.

Thanks attamma mee bag return teskonendaneku. Thank you."

A reading of the said document at no stretch of

imagination goes to show that it is a suicide note. On the other

hand, the evidence of PW1 in her cross examination that the said

writing is with respect to her sister-in-law and mother-in-law to

take back the gifts given by them appears to be quite

convincing. All these aspects clearly go to show that the

respondent-husband somehow wanted to get rid of his wife and

as such, kept her separate and did not allow her to join him

back. Thus, without any reasonable excuse, he has withdrawn

from the society of his wife.

Learned Counsel for the respondent in his arguments

relied upon the decision in the case of Gowrishankara Vs K

Gayathridevi reported in 1984 1 KLJ 443, wherein this Court

at paragraph 15 was pleased to observe that - had the husband

and wife really were living in cordial terms then the husband who

was the petitioner before it could not have issued legal notice

calling upon his wife to join him. Making further observation,

this Court was pleased to reject the appeal of the husband who

wanted a decree of dissolution of marriage. In the case on hand

also, admittedly from 13.08.2013, the petitioner and the

respondent are not living together. Further more, in the

meantime, the husband had also filed a petition for the relief of

judicial separation which ultimately was withdrawn by him. Even

according to the respondent-husband, he has filed a petition

seeking dissolution of marriage in OP No.345/2015, which is still

pending. All these aspects make it abundantly clear that

respondent-husband without any reasonable excuse has

withdrawn from the society of the petitioner-wife. Thus, the

petitioner in the court below has established the essential

ingredients of Section 9 of the Act and the Court below has

properly appreciated and analyzed the material placed before it

including the evidence and has come to a correct finding to allow

the petition by passing the decree of restitution of conjugal

rights. As such, we do not find any grounds to interfere in the

said order.

Accordingly, we answer both these points in the

Negative.

Point No.3 : In view of our findings to point Nos.1

and 2 and for the reasons given thereunder, we proceed to pass

the following:

ORDER

This Miscellaneous First Appeal of Appellant-Husband

Praveen Etta is dismissed. There is no order as to costs.