Smt. Parveen Bala Alias Veena vs Jagdish Rai

J.V. Gupta, J.—This appeal has been filed on behalf of the wife Parveen Bala against the decree of conjugal rights passed against her by Sub Judge, First Class, Muktsar

The marriage between the parties was solemnised on 28.2.1979. Out of his wedlock, one male child was born on May 19, 1980 and a female child was born in August. 1982. The parties lived together upto 13.11.1981 when the wife left the matrimonial home. The petition of husband for restoration of conjugal rights u/s 9 of the Hindu Marriage Act was filed on 4.5.1983. Earlier petition was proceeded ex-parte. Ultimately, this ex parte decree was set aside on 22.7.1985.

In the petition it was alleged on behalf of the husband that his wife, Parveen Bala had parted company from him since 14.11.1981 without any reasonable cause and she did not come back despite being requested a number of times by him and by various Panchayats which were sent to Ludhiana and Moga where the father''s sister of the wife married but to no avail. In the reply filed on behalf of the wife, it was pleaded that she was turned out of the house by her husband after giving beating and his behavior with her from the beginning was very cruel. She further stated that her husband and his parents were not satisfied with the articles of dowry and other gifts were given at the time of her marriage. It was further pleaded that the husband and his parents were saying that she was not a match for the husband Jagdish Rai and he was to be remarried somewhere else. According to the wife her husband was a habitual drunkard and he used to beat her and her son Sonu without any reason under the influence of liquor. She was never given love and affection in her husband''s family. According to her allegations in the written statement, during the period 28.2.1979 to November, 1981, her husband and his parents gave beatings to her a number of times but with the intervention of her relatives she was taken back by him She denied that anybody ever visited the house of her father. Rather, she alleged that her father took various Panchayats to the house of her husband but he and his parents refused to keep her and stated that the husband was to be married for the second time somswhere else. The plea was also taken that this petition was a counter blast to the application filed by her u/s 125 Cr. P. C. which was filed in the court of Judicial Magistrate, Ludhiana on 18.4.1984. On the pleadings of the parties, the trial court framed the following issues:-

(1) Whether the Respondent has withdrawn from the Society of the Petitioner with sufficient cause ? O. P. R.

(2) Relief.

The learned trial court, after discussing the entire evidence came to the conclusion that it is the wife who parted company from the husband without reasonable cause. Consequently, the decree for restitution of conjugal rights was passed in favour of the husband.

Efforts for reconciliation were made in this Court At one stage, on 11.11.1987, both the parties suggested two names each who were summoned in this Court for reconciliation. However, on 1.12.1987, counsel for the Appellant stated that the persons named by him are not prepared to appear in this Court. In the circumstances, the case was adjourned for arguments on merits.

The learned Counsel for the Appellant (wife) submitted that no Hindu wife would live separately from her husband unless there are grounds for living separately. According to the learned Counsel this was for the husband to disclose as to why the wife was not prepared to live with him. The allegations made in the petition that she wanted her husband to live separately from his parents and settle at Ludhiana was not supported by any evidence on the record. The said allegations were false and, therefore, the finding of the trial court in this behalf are wrong, illegal and against the evidence on record. He also referred to the two letters written by the father of the wife Om Parkash to show that there was something wrong on the part of the husband. It was also submitted that the petition for restitution of conjugal rights has been filed as a counter blast to the application filed by the wife for maintenance u/s 125 Cr. P. C. wherein a sum of Rs. 1,000/- has been fixed as maintenance for her as well as her two children.

I have beard the learned Counsel for the parties and also gone through the relevant evidence on record.

8 The learned Sub Judge has discussed the entire evidence in detail. It has been observed by him that "even if what Sharimati Parveen Bala, R. W. 1 states is taken on its face value, the statement does not find corroboration by the statement of even her own father, Om Parkesh, R. W. 3 who simply states that the Respondent was turned out of the house of the Petitioner and does not say that any beatings were given to her when she left the company of the Petitioner. According to him, the Respondent was saying that she was not ready to back to live with the petititioner as she could not afford to undergo any further mental and physical torture." Thus, there was no cogent evidence on the record to prove that any beating, as alleged by the wife, was given to her. Not only that she had gone on 13 11.1981 as there was marriage of her sister Renu Bala on 23.12.1981. The said marriage was attended by Jagdish Rai, her husband. If he had turned out the wife after giving her beating, he would have been the last person to go to attend her sister''s marriage

As regards the allegation of the wife that no attempts were made by the husband to bring her back also does not inspire confidence. The father of the wife, who tried to blame the father of the husband for having made circumstances beyond control, in his letters Ex A. 2 and A. 3, do not support the version of the wife that she was given any beating or maltreatment as such. Thus, the stand taken up by the wife in her written statement was never proved by any reliable evidence

Efforts were made on behalf of the husband even during the trial but the wife, Parveen Bala did not respond as agreed between the parties. Similar was the position in this Court. From the conduct of the wife it appears that she is not in a mood to compromise and live with her husband in the matrimonial home The learned Counsel for the Appellant referred to Mst. Nirmi v. Satbir Singh 1985(1) Cur L. J. 325., Bhagwan Singh v. Nasib Kaur 1985 (1) H. L. R. 59. and Mohinder Kaur v. Surinder Kumar 1985 (1) H. L. R. 584. These judgments have no relevancy to the facts of the present case. Each case is to be decided on the facts of that case whether there has been a reasonable excuse for withdrawing from the society or not as it is primarily a question of fact and, therefore, no precedent as such was of much help in this respect. Moreover, there is explanation to Section 9 of the Hindu Marriage Act which provides that where a question arises whether there has been a reasonable excuse for withdrawing from the Society, the burden to prove the reasonable excuse shall be on the person who has withdrawn from the society. In these circumstances, in the present case, it was for the wife to prove that she had reasonable excuse for withdrawing from the society of her husband which she has failed to prove by any cogent evidence.

As regards the application filed by her u/s 125 Cr. P. C, the same was filed on 18.4.1984 whereas the present petition u/s 9 of the Hindu Marriage Act was originally filed on 4.5.1983. In any case, as regards maintenance that she is entitled to u/s 125 Cr P. C, the duty of her husband to maintain her will still continue particularly when the two children are living with her for whom the maintenance has also been fixed in that application The children could not be deprived of the maintenance simply because the wife was living separately from her husband. Moreover, it has been stated at the bar that proceedings for the custody of the children was made by the husband but he failed therein. Thus, in these circumstances, his liability to maintain his children and wife is still there. Consequently, the appeal fails and is dismissed with no order as to cost.