Sri. Umashankar vs Smt. Dakshayani

K.L. Manjunath, J.—The unsuccessful husband has filed this appeal questioning the dismissal of the petition filed by him u/s 9 of the Hindu Marriage Act, by the Family Court, Shivamogga dated 8th August 2012 in M.C. No. 83/2011. Heard the learned Counsel for the parties.

The marriage was solemnized between the parties on 07.06.1987 at Sri. Veerashaiva Kalyana Mantapa, Shivamogga. After the marriage they were living together at Kadur in Chikkamagalur District. Later they shifted their family to Bangalore. In Bangalore, the appellant and his wife were living together in his brother''s house. Since his wife could not adjust with his brother''s family as she became pregnant she was sent for delivery. She gave birth. to his son. Six months after the delivery she returned to the matrimonial house and after one and half years later the respondent deserted the appellant, returned to Shimoga and she has been residing with her son in Shimoga.

The appellant instead of filing the petition for restitution of conjugal rights filed a petition for divorce before the Family Court at Bangalore. According to him, the respondent-wife agreed to stay with him. Therefore, the petition was not pressed and the respondent stayed only for a period of six months. Contending that without any reasons the wife is residing separately, he filed a petition for restitution of conjugal rights. The wife admitted her relationship with the appellant. She also admitted that she gave birth to son. According to her, the appellant was ill-treating her and as she could not bear the ill-treatment as he was also suspecting her character and she was compelled to take shelter at her parents house. It is also her case that she has filed a petition u/s 125 of Cr.P.C. in C. Misc. No. 1003/2007 before the JMFC Court-II, Shivamogga for grant of maintenance and that her son has also filed a suit for partition against the appellant in O.S. No. 13/2010 before the Civil Judge (Sr. Dvn.), Kadur and the said suit for partition is also dismissed. To overcome the same, the present petition is filed for restitution of conjugal rights.

To prove their respective contentions, husband got himself examined as PW-1 and he relied upon Ex. P1 to P6. The wife got herself examined as RW-1 and she relied upon Ex. R1 to R4.

The learned Judge after appreciating the entire evidence lead by both parties, formulated the following points for its consideration:

Whether the petitioner-husband has proved that respondent-wife has withdrawn from his society without any reasonable excuse and therefore, he is entitled for a decree for restitution of conjugal rights U/Sec. 9 of Hindu Marriage Act, 1955?

To what Order?

The said point is held in negative. Ultimately, the said petition came to be dismissed. Challenging the same, the present appeal is filed.

We have heard the learned Counsel appearing for the parties. The main contention of the appellant''s Counsel before the Court is that, the Trial Court did not consider the evidence lead by both the parties and the Trial Court has committed serious error in dismissing the petition. Therefore, he requests the Court to allow the appeal and set aside the findings of the Trial Court.

Having heard the learned Counsel for the appellant and the learned Counsel for the respondent, the only point to be considered in this appeal is:

Whether the order of the Court below rejecting the prayer of the appellant for restitution of conjugal rights and a direction to the respondent to join him u/s 9 of the Hindu Marriage Act, is correct?

Admittedly, the parties are living separately since 25 years. The petition is filed in the year 2011 since then efforts have not been made by appellant to secure his wife to the matrimonial home. In addition to that the son has been under the care and custody of the respondent. He has completed his Engineering Graduate. As a matter of fact, in the cross-examination of RW-1, the appellant''s Counsel has put a question that, is there any need for her the presence of appellant at the time of celebrating the marriage of his son. The answer to the said question is when she has been living separately for last 25 years for her remaining life would be the same and she can spend life with her son.

We have also seen that if really the appellant was interested to take the respondent back he would have made attempt long back. When he has made his wife to file a petition for maintenance and also his son to file suit for partition several years thereafter, if he files petition u/s 9 of the Hindu Marriage Act, the only presumption that could be drawn by any Court would be to avoid maintenance payable and to avoid to give share to his son, the present petition is filed. Accordingly, the appreciation of the Trial Court is just and proper and no case is made out by the appellant to interfere with the judgment and decree of the Trial Court.

In the result, the appeal is dismissed.