Smt. Harbhajan Kaur vs Jatinder Singh

Harbans Lal, J.—The petition by the husband (the respondent) u/s of the Hindu Marriage Act, was allowed and a decree for restitution of conjugal rights was passed against the wife (the appellant), by the Subordinate Judge. First Class, Jagraon, vide order dated December 15, 1977. The same is impugned in the present appeal.

The facts admitted on both sides are that the marriage between the respondent and the appellant was solemnised on October 13, 1968. Though the same was consummated, yet no child was born. According to the respondent, the appellant withdrew from his society on August 15, 1973, without any reasonable excuse on the plea that she was to attend the marriage of her relation and thereafter, she never resumed cohabitation. According to the appellant, her husband used to maltreat her and subject her to a heating as his demand for motor cycle could not be satisfied The respondent and his parents also nursed grievance regarding inadequacy of dowry. The allegation of the respondent that in 1972 the appellant had taken Rs. 500/ from him for payment to her father and the said amount was never returned, was expressly denied On the pleadings of the parties, the following issues were framed.

Whether the respondent has withdrawn from the society of the applicant with reasonable excuse ?

Whether the petitioner is entitled to decree for restitution of conjugal rights ?

Relief

According to the conclusions of the trial Court, the appellant had withdrawn from the society of the respondent without any justification or excuse and as such, a decree for restitution of conjugal rights was passed

So far as the evidence of the respondent is concerned, Tarlok Singh, P.W. 1, deposed that in (sic), he, on the request of the respondent, accompanied a panchayat to the house of the father of the appellant and met her brother However, he (the brother of the appellant) refused to send his sister to the respondent and no reason for the same was disclosed. He, however, significantly stated in examination-in-chief, that he offered to stand a surety for the good conduct of the respondent. Bahadur Singh, P.W. 2, also stated to have accompanied the Panchayat on behalf of the respondent and met father and brother. According to him, the appellant herself was not present at that time. They refused to send the appellant According to the witness, when enquired about the reasons for the refusal, no specific cause was disclosed by them, but it was stated that the reasons were already known to the respondent The witness also offered to stand a surety for the good conduct of the respondent. The statement of Devinder Singh, P.W. 3, father of the respondent, is also on similar lines, but he made an addition that the father and the brother of the appellant had not only refused to send her to the respondent but had even disclosed that they wanted to arrange a second marriage of the appellant. Jatinder Singh, P.W. 5 is the respondent himself who, in his statement, alleged that Rs. 500/- had been taken by his wife, the appellant, for her father, which were never returned. According to him, this may be one of the reasons for the appellant not to return to her (sic) home He denied that he had ever demanded a (sic) or a scooter from his in laws as dowry In cross examination he frankly conceded that his wife was a gentle lady and of a good (sic) character. Surjit Singh. P.W. 4 deposed to another (sic) when he met Balwant Singh, the brother of the appellant, at the (sic) Patto Hira Singh, and asked him to send his sister back to the respondent. Balwant Singh refused and gave no reasons for the same. In cross examination, it was admitted that he was related to the respondent''s father.

As against this, the appellant besides her own statement, produced (sic) witnesses in corroboration of her case in the written statement. Harnam Singh P.W. 1, father of the appellant deposed that he was a retired Police Inspector, possessed 19 acres of land, had Bank balance and was an income tax payer. He denied the allegation of having borrowed Rs. 500/- from his son in law through his daughter. He was willing to send his daughter to her husband provided he furniture security to the tune of Rs. 50,000/- guaranteeing the life of his daughter, the appellant. According to his statement, he was not living in the village, but used to come there and met hit daughter from time to time when his daughter made complaints of maltreatment meted out to her by the respondent. The witness was having his business at Delhi. He corroborated the version of his daughter to the effect that his daughter had told him that her husband was demanding Rs. 5,000/. According to him, two panchayats had been taken by his son to bring about reconciliation between the parties Joginder Singh D.W. 2, was the mediator on behalf of the respondent whereas Prem Singh was the mediator on behalf of the appellant. It is significant to note that he is a resident of village Roomi the residential village of the respondent According to his (sic) in (sic) when the appellant had come to live with her husband during summer vacation, the respondent maltreated her and even gave her a besting. Consequently, she went to hit house. The respondent and his father, armed with dangs, went to the house of the witness and inflicted beating on her in his presence. Ha denied in cross examination if he was related to the appellant in any manner. According to his further statement, it was in 1969, for the first time, that the appellant disclosed to him about her maltreatment by the respondent. In cross-examination, regarding the beating in 1971, it was clarified that, in fact, lathi blows had been inflicted on his son when he tried to rescue her from the attack of the respondent and his father. Bhag Singh, R.W. 3 who does not belong to the village of either of the parties, stated that he was a member Panchayat of his village where the appellant had been posted as a teacher. In January, 1970, the respondent came to the school where the appellant was working, at about evening time, and threatened and gave a beating to her. His grievance, as disclosed at that time by him was, that the appellant must part with her entire salary to him. The appellant stated that she needed money for her own needs also. Kartar Singh R.W. 4, is sarpanch of village Patto Hira Singh, to which the father of the appellant belongs. He accompanied the appellant''s brother in a Panchayat to the respondent for reconciliation. According to his deposition, the respondent was not prepared to have rapprochement unless his wife was prepared to pari with her entire salary. This witness is not proved to be related to the appellant or her parents in any manner, Karnail Singh, R.W. 5, member Panchayat of another village Munuke, also corroborated the allegation of the appellant regarding her beating by the respondent in February, 1971 in his village where the appellant was posted as a teacher at that time. According to him she was (sic) in the house of one Sadhu Ram which adjoined his own house. According to his statement, the respondent demanded her entire salary and also Rs. 5,000/- which according to the respondent bee promised at the time of the marriage, for purchasing a motor-cycle. Balwant Singh, R.W. 6, the real brother of the appellant, lent corroboration to his sisters version. According to Prem Singh, R.W. 7 he belonged to another village in Moga Tehsil and acted as a go between on behalf of the appellant at the time of the marriage. According to him, the relation between the two spouses had got trained a few months after the marriage He accompanied her brother and other persons In a Panchayat to the house of the respondent in November, 1971. According to him, the respondent''s side put forth two conditions, namely, the parting of entire salary by her in favour of the respondent and also the payment of Rs. 5,000/- as promised at the time of the marriage.

Another Panchayat had been taken in April, (sic), but to no effect. Teja Singh R.W. 8. Sarpanch of her village and Santa Singh, Lambardar, R.W. 9, also corroborated the version of the appellant regarding the two demands made by the respondent and the taking of the panchayat for the purpose of reconciliation. The appellant R.W. 10, as her own witness, also corroborated her version as given in the written statement.

According to the assessment of the trial Court the evidence produced en behalf of the appellant could not he placed any reliance because the allegation of beating by the respondent, remained uncorroborated by any medical evidence, nor had any complaint been made to the police, nor any criminal proceedings taken on her behalf in any Court. As is evident from the resume of the evidence as reproduced above, a number of witnesses produced on behalf of the appellant were not related to her nor were they found to be in any way interested in her so as to manufacture or concoct a false version in her favour. They are respectable persons of other villages where the appellant was posted from time to time as a teacher. They had witnessed the fact of Infliction of beating, on her by the respondent. There is no reason to doubt or disbelieve their testimony only on the ground that the was not subjected to any medical examination or any criminal proceedings were not initiated against the respondent. It is a matter of common knowledge that despite the factum of beating or other maltreatment by the husband, the wife or her parents do not resort to criminal proceedings or to create evidence by getting her medically examined. Their anxiety is somehow to bring about reconciliation so to rehabilitate their ward. The evidence of the appellant appears to be quite consistent and does not suffer from any material infirmity except very minor discrepancies here and there which are absolutely inconsequential. Even excluding the evidence of the appellant herself, her father and her brother, the remaining evidence of independent and disinterested witnesses cannot be ignored. The allegation of the respondent that Rs. 50 0/- had been taken by the appellant for her father, on the face of it, is too crude to be believed especially when it is clear from the statement of her father, Harnam Singh, R. (sic), that he was a retired police Inspector and possessed considerable landed property and had even a Bank balance. According to his deposition, he was even an income tax assessee. No question was put to him is cross-examination to shatter his testimony in this regard. Even according to the admission of the respondent himself, the appellant was gentle lady and bore a good moral character. He could not bring out any material or the record to bring to light, any circumstances which may have prompted or induced the appellant to leave the matrimonial home and thus destroy her happiness throughout her life. Even the allegation that her parents wanted to

remarry her, referred to by one witness, was not pleaded in his petition, Tarlok Singh, P.W. 1 and Bahadur Singh, P.W. 2, who stated to have gone in a panchayat with the respondent and his father to bring the appellant back, had disclosed that they had offered to furnish security for toe good behavior of the respondent. There was no occasion to offer such a guarantee unless there was some foundation for apprehension of the appellant arising out of the conduct of her husband. Devinder Singh, P.W. 3, father of the respondent, even went out of the way to concoct another allegation that the appellant''s brother conveyed to them their intention to re-marry his sister, which was not even the case of the respondent at any time. In these circumstances, it is not possible to conclude that the appellant left the house of the respondent voluntarily without any reason. In view of the overwhelming evidence produced on behalf of the appellant, the cause of her leaving the house of her husband, was that she was being subjected to maltreatment and beating by the respondent. As such, the finding of the trial Court that the appellant had left the matrimonial home without reasonable excuse cannot be upheld.

For the reasons mentioned above, this appeal is allowed, the decree of the trial Court is set aside, and the petition of the respondent is dismissed with costs, Counsel fee is fixed at Rs 209/.