SMT. LALITA, W/O DAMODHAR SIDDI vs DAMODHAR VENKAT SIDDI

The appellant has filed this appeal under Section

28 of the Hindu Marriage Act, 1955 being aggrieved by

the judgment and decree dated 13.11.2014 passed by

the Senior Civil Judge, Sirsi in M.C. No.73/2012

allowing the petition filed by the respondent herein

under Section 9 of the Hindu Marriage Act.

In her memorandum of appeal the appellant

has taken a contention that the respondent herein had

not placed any material before the court below except a

copy of notice in support of his contention. The court

below has given much importance to the fact that PW.1

was not cross examined. It also did not consider the

written statements filed by her in the court below. With

this she has prayed for setting aside the judgment and

decree under appeal. The respondent herein has

served but has remained unrepresented.

The matter came up for admission. We have

heard the matter in detail, perused the memorandum of

appeal and the impugned order.

It is the respondent-wife''s appeal. The

petitioner-husband had instituted a petition against her

in the court below under Section 9 of the Hindu

Marriage Act seeking the relief of restitution of conjugal

rights. As could be gathered from the available material

and more particularly from the impugned order, it was

his contention in the court below that he married the

present appellant/wife about 14 years back to the date

of the institution of the petition in the court below. Out

of the wedlock the parties begot two children, a male

and a female. The appellant was doing coolie work and

taking care of his family including educating his

children. It is the contention of the petitioner -

husband in the court below that the respondent - wife

was frequently visiting her parents'' house and staying

there for about 10 to 15 days without informing him.

Whenever he used to go to take her back, she used to

insult him. She also lodged several false complaints

against him in Sirsi Rural Police Station. When the

matter stood thus, on 28.4.2002 the respondent wife

left the company of the petitioner-husband and taking

her cloths and golden ornaments, left for her paternal

home. She left her children with petitioner - husband

himself. She did not come back to her matrimonial

home despite the request made by the husband. As

such, the petitioner - husband got issued a legal notice

through his advocate on 25.8.2012 which was served on

her. Inspite of the same she did not return, thus,

causing lot of inconvenience to the petitioner - husband

in looking after their children and their welfare. With

this he has prayed for issuing a direction to the

respondent - wife to join him under the relief of

restitution of conjugal rights.

The respondent - wife in response to the

notice served upon her appeared in the court below

through her counsel and filed her statement of

objections. In her statement of objection though she

has admitted her marital relationship with the petitioner

- husband and begetting two children out of wedlock,

but she denied all further allegations made against her

about she deserting her husband. On the contrary, she

alleged that petitioner -husband was addicted to bad

habits and was ill-treating her under the influence of

alcohol.

In the court below the petitioner - husband

got himself examined as PW.1 and got produced office

copy of the legal notice dated 4.3.2014 said to have

been sent to the respondent - wife and got it marked as

EX.P1. The respondent - wife neither chose to cross

examine PW.1 nor entered the witness box and nor even

examined any witnesses from her side. The court below

by its impugned judgment and decree dated 13.11.2014

allowed the petition granting decree of restitution of

conjugal rights in favor of petitioner - husband.

The learned counsel for he appellant in his

argument submitted that the wife was not given proper

opportunity to cross examine PW.1 and to put forth her

case, as such, the impugned order deserves to be set

aside and the matter requires to be remanded.

It is not in dispute that the respondent - wife

in the court below was given due notice of the petition

as such she appeared through her counsel and filed her

statement of objections. It means she was aware of the

proceedings and its seriousness. The court below has

specifically recorded in its judgment that the respondent

- wife therein neither cross examined the petitioner nor

chose to step into the witness box to prove her defence.

This goes to show that she was given reasonable

opportunity, but she did not made use of the same.

Even in her present memorandum of appeal also the

appellant - wife has not shown any reason for she not

cross examining PW.1 or for she not leading evidence

from her side. As such, the mere say of learned counsel

that she was not given an appropriate opportunity

cannot be accepted at its facial value. On the other

hand from a reading of the impugned order which has

also recorded the contents of statement of objections

filed by the respondent - wife before it, go to show that

except denying the allegations levelled against her by

the husband in his petition, the wife has not produced

any material justifying her staying away from the

marital home. On the other hand she in her present

appeal has herself stated that her husband was

objecting her to visit her marital home, which can be

inferred as corroborating the allegation of her husband

that she was frequently visiting her parents'' house and

stay there. She has also not denied either in her

statement of objection or in this Court that the children

born out of wedlock to them continued to stay with her

husband. This fact shows the necessity of directing her

to join back her matrimonial home in the best interest

of her family. More over, the parties are of young age.

As on the date of the institution of petition the husband

is said to be of 34 years and wife was said to be of 28

years old. As such, it is the institution i.e., their family

and the interest of the family and more particularly, the

two young children is to be considered. As such, the

finding of the Tribunal below cannot be found fault

with.

Learned counsel for the appellant in his

argument submitted one more point that the wife had

withdrawn the complaint lodged by her with the Sirsi

Rural Police Station. If that were to be the case, it can

be inferred that her allegation against her husband may

not be of very serious in nature. However, if at all she

has got any valid reasons to stay away from her

husband, she had separate remedy for the same

including a judicial separation. Thus, she cannot

unilaterally leave the company of her husband and

children and stay separately with her parents with no

justifiable cause or reasons for the same. As such,

there exists no point requiring to be considered by

admitting this matter. Thus, there are no grounds

made out to admit this matter.

Accordingly, we proceed to pass the following

order.

ORDER

The appeal stands dismissed at the stage of

admission. However, it is made clear that the present

appellant - wife is at liberty to pursue the legal remedies

available to her in accordance with law. In such an

event the observation made in this appeal would not

come in the way of disposal of that/those matter in

accordance with law.