Smt. Krishna vs Dilbagh Singh

Sarojnei Saksena, J.—The appellant-wife has challenged decree passed against her in Hindu Marriage Case No. 32 of 1986 filed u/s 9 of the Hindu Marriage Act (hereinafter referred to as the Act).

The respondent-petitioner filed a petition u/s 9 of the Act alleging that he was married to the appellant on 18.2.1980. After marriage they lived together for about five years peacefully. She gave birth to a son on 8.2.1984. Respondent''s father advanced Rs. 10,000/- to the appellant''s father as a loan in the month of July, 1982. When respondent''s father demanded this amount in January, 1985, appellant''s father became annoyed. In February, 1985 appellant was called back from the matrimonial home to the appellant home, she was not sent back. The respondent''s brother went to her parental home to bring her back but she declined on the excuse that the child is ill. In July, 1985 again, the respondent''s father went to bring her back but the appellant''s father refused to send her and refused to repay the loan also. The respondent convened panchayat to bring her back but all proved futile. On 24.11.1985, appellant''s father filed a false complaint against the respondent, his father and his uncle u/s 107/ 151 Cr.P.C. They were discharged on 16.4.1986 as the appellant gave a statement that the complaint was filed on the basis of some misunderstanding. The respondent filed a petition u/s 9 of the Act, which was compromised and the appellant went to reside in the matrimonial home. But again in May, 1986, appellant''s father came to her matrimonial home, demanded some amount from the respondent and on his refusal he threatened him to involve in some false case. Thereafter, he obtained warrant u/s 97 Cr.P.C. from the Court of Sub- Divisional Magistrate, Siwani. In compliance thereof the appellant was produced before the Magistrate. She gave a false statement at the instance of her father and went to her parental home. Thus, she has withdrawn from his society without any reasonable cause or excuse.

The appellant filed written statement and denied all the allegations that she has deserted her husband or her father has obtained a loan of Rs. 10,000/- from his father. She also denied that any Panchayat was convened for reconciliation. She admitted that proceedings u/s 107/151 Cr.P.C. were initiated against her husband, father-in-law and uncle-in-law. She was/is always ready and willing to reside with the respondent. She was given merciless beating, then when she sent information regarding her mal-treatment to her father, he obtained warrant u/s 97 Cr.P.C. Since then she is residing in her parental home. Thus, she was forced to leave the matrimonial home and to take shelter in her parental home.

Issues were framed. Respondent examined himself and his witnesses who were cross-examined by the appellant''s Counsel. But in rebuttal the appellant failed to adduce any evidence. On a minute scanning of the evidence on record, the Trial Court came to the conclusion that the respondent is willing to keep his wife but the appellant is not joining him. She has withdrawn from his society without any sufficient cause. On the basis of this finding decree for restitution of conjugal rights was passed.

Appellant''s learned Counsel submitted that the appellant filed a petition u/s 125 Cr.P.C. Earlier the respondent filed a petition u/s 9 of the Hindu Marriage Act. In that case both the parties compromised on 28.3.1986. The compromise order is at Ex. P-l. As per compromise, the respondent withdrew his petition and, thereafter, she went to live with her husband but again she was given merciless beating. She sent information to her father, who obtained search warrant u/s 97 Cr.P.C. and thus she was recovered from her husband''s house. Since then she is living in her parental home. Now again on 5.8.1986, the respondent has filed this petition u/s 9 of the Act. For the last nine years, the parties are living separately. Earlier when she was living with the respondent, she was subjected to cruelty and beating and thus was forced to leave the matrimonial home. Hence, it cannot be said that she has deserted the respondent on her own. Rather, the respondent is guilty of constructive desertion.

Respondent has examined himself as PW-1, Khubi Ram PW2, Ajit Singh PW3 and Balbir Singh PW-4. Respondent has proved the allegations made in the petition. He has also proved that earlier proceedings u/s 107/151 Cr.P.C. were initiated by her father against him, his father and uncle. They were discharged because the appellant gave a statement that the complaint was filed due to some misunderstanding. Earlier also he filed a petition u/s 9 of the Act which ended in a compromise on 28.3.1986. He has also stated that his father-in-law came, to his house for demanding money and on being refused threatened him and thereafter he obtained warrant u/s 97 Cr.P.C. The wife made false statement that she was being harassed by him. Since then she is living in her parental home. He has denied that she was subjected to beating. He has categorically stated that he is willing to keep her. He is duly corroborated by other witnesses. Since there is no other evidence in rebuttal, the Trial Court relying on the respondent''s evidence passed the impugned judgment and decree.

As the appellant has failed to adduce any evidence, she could not prove that she was ever subjected to cruelty by her husband and was thus forced to leave the matrimonial roof. Earlier also the respondent filed a petition u/s 9 of the Act which ended into a compromise. Now again she has gone back to her parental home on 5.8.1986. In this case she has failed to adduce any evidence. Thus, from her proved conduct it is evident that she has deserted the respondent without any reasonable cause or excuse. The respondent is making consistent efforts to bring her to the matrimonial home but she is persistently avoiding to join him. In my view, the Trial Court has not committed any error in decreeing the respondent''s petition.

Consequently, the appeal is hereby dismissed. No order as to costs.