Smt. Santoshi Belwanshi vs Kop Singh

This appeal has been filed by the appellant-wife against the judgment and decree dated 13.05.2005 passed by Additional District Judge,

Lakhnadaun, District Seoni in C.S. No.14-A/04 whereby the application filed by the respondent-husband under Section 9 of the Hindu Marriage

Act for restitution of conjugal rights has been allowed.

It is not in dispute that the appellant and respondent are husband and wife. Their marriage was solemnized on 09.05.1997 according to Hindu

religion and rites. They have a daughter and a son. Since 20.02.2004, they are living separately.

In brief, the case of the respondent is that the appellant went to her maternal home to meet her relatives, but she did not return back. Thereafter,

the appellant-wife refused to live together with the respondent-husband. After so many efforts, the respondenthusband failed to bring her to the

matrimonial house. Therefore, respondent-husband filed a case under Section 9 of the Hindu Marriage Act for restitution of conjugal rights against

the appellantwife. The appellant-wife denied the allegations made by her husband and submitted that the respondent/husband used to beat her for

demand of dowry. Then she filed an application under Section 125 of Cr.P.C. against him before the Court of Judicial Magistrate First Class,

Balaghat. Hence, the respondent-husband filed the said application.

Learned trial Court considered the evidence of both the parties and found that the appellant was residing separately from the respondent-

husband without any proper reason. Therefore, a decree under Section 9 of the Hindu Marriage Act for restitution of conjugal rights has been

passed against the appellant.

The appellant challenged the aforesaid findings on the grounds that learned Court below ought to have considered that there is sufficient,

reasonable and plausible cause with the appellant to live separately because her life may be endangered at the hands of the respondent. The

respondent used to beat her in cruel manner due to suspicion of her character. Appellant filed an application under Section 125 of Cr.P.C against

the respondent and to counter the case just to save himself, respondent filed the application under Section 9 of the Hindu Marriage Act with an

ulterior motive. It deserves to be dismissed.

We have heard learned counsel for the appellant.

The case is pending since 2005. So many opportunities were granted in favour of the parties to arguing the matter. Record of the case indicates

that the respondent is represented by his counsel. On 15.03.2016, it was informed that the respondent has contracted second marriage and is now

living with his second wife. Therefore, it was directed to bring the documents on record along with affidavit of the appellant and it was also directed

that appellant and respondent remain present before this Court on 26.04.2016, but the direction was not complied by the respondent. Therefore,

on 26.04.2016, case was fixed for final hearing. It seems that by the passage of time, respondent has lost interest in prosecuting the case, hence,

the matter is considered on its merit.

In compliance of the order dated 15.03.2016, the appellant filed the copy of order-sheet dated 22.07.2009 of Court of C.J.M., Balaghat.

Istgasa put up by the Police Station Kotwali, Balaghat against the respondent for offence under Section 494/34 of the IPC with the copy of

application under Section 163 of Cr.P.C. filed by the appellant against the respondent along with her affidavit dated 15.03.2016, which was

unchallenged.

The enquiry report submitted by the Police Station Kotwali, Balaghat established that the respondent performed second marriage on

12.01.2009 with Sharda Bai. Sharda Bai was residing with the respondent/husband as his wife. In the absence of the counter affidavit and reply

from the respondent side, the aforesaid documents cannot be ignored.

The second illegal marriage of the husband itself is a proper ground to refuse to live with the husband.

Learned trial Court presumed that in the relationship of appellant and respondent role of brother-in-law of the appellant is very important. The

trial Court has also found that the appellant was residing with her brother-in-law and, therefore, the respondent did not like it. Therefore, decree of

restitution of conjugal rights has been granted in favour of the respondent.

On the other hand, the appellant submitted that the respondent took a contract at Bamhanwada and was stayed there for about 2-3 months.

He did not come back to his home. He was in the habit of beating the appellant regularly. He also ignored his family and threatened her to perform

second marriage. Therefore, she was residing with her brother and brother-in-law for sometime. She also deposed that she received a notice from

her husband/respondent to come back to her matrimonial house. Then she replied and informed that if the respondent himself would come to take

her then, she will return back to her matrimonial home. We do not find that the respondent has made any effort from his side.

The respondent admitted that he did not proceed against brother-in-law of the appellant with regard to displeasure of the respondent about

staying of the appellant with her brother-in-law. He stated in his chief-examination that the appellant went to Balaghat (Place of Rajendra her

brother-in-law) because her mother was serious and admitted in the hospital at Balaghat. It appears that due to some confusion with regard to

character of appellant, he teased his wife without any sufficient reason. The respondent has also performed second marriage with another lady

Sharada Bai, therefore, the appellant cannot be compelled to reside with her husband and performed her conjugal duties towards the respondent.

We are of the considered view that the trial Court has wrongly granted the decree of restitution of conjugal rights under Section 9 of the Hindu

Marriage Act in favour of the respondent. Hence, appeal filed by the appellant is allowed. The impugned order and decree is set aside.

No order as to costs.