Suryakanti Patel vs Gunanidhi Patel and Others

P.K. Mohanty, J.—Defendant No. 1 is the appellant in a suit for restitution of conjugal rights u/s 9 of the Hindu Marriage Act against the judgment and decree passed by the Learned 1st Addl. District Judge, Bolangir in Title Appeal No. 18/8 of 1982-85 confirming the judgment and decree of the Learned Sub-ordinate Judge, Sonpur in Title Suit No. 4 of 1980 decreeing the plaintiff''s suit for restitution of conjugal rights.

The facts of the case briefly stated are that the Respondent No. 1 filed an application u/s 9 of the Hindu Marriage Act before the Learned Sub-ordinate Judge, Sonpur for restitution of conjugal rights stating inter alia that the Defendant No. 1 the present appellant is the legally married wife of Respondent No. 1, the marriage having been solemnized in the month of Chaitra, 1977 in the house of Respondent No. 1 at village Sukha. Both of them led a happy conjugal life till the month of Aswina, 1978 when Respondent No. 2 took her to his house to observe ''Bhaijuintia'' ceremony. Respondent No. 1 went to the house of Respondent No. 2 to bring back the appellant but the Respondent No. 1 deferred the matter and lastly did not allow her to go with him. The plaintiff-respondent thereafter approached the Defendant No. 1 wife to return to her matrimonial home and that having failed, approached twice the Village Caste Panchayat, in vain, he filed the application u/s 9 of the Hindu Marriage Act for restitution of conjugal rights and for restraining Respondents No. 2 and 3 from putting any obstruction in the matter. Respondents No. 2 and 3 remained ex parte and the Defendant No. 1 the present appellant contested the suit. It was the defendant-appellant''s case that she is not the legally married wife of the Respondent No. 1. One of her relatives namely Kalakrushna took her to village Sukha with the proposal of seeing a house of bridegroom for her and he (Kalakrushna) left her in the house of Respondent No. 1. Respondent No. 1 was found to have kept a concubine in his house and in spite of the attempts made by her, the plaintiff-Respondent No. 1 used to enjoy the matrimonial life with the appellant in drunkenness. He also brutally assaulted her and lastly left her at the house of her parents and thereafter did not provide anything for her maintenance.

The Trial Court framed following issues:

(i) Whether the petitioner is validly married to the Respondent No. 1 ?

(ii) Whether the petitioner is guilty of cruelty ?

(iii) Whether the petitioner is entitled to a decree of restitution of conjugal right ?

(iv) Is the suit maintainable in its present form ?

On consideration of the evidence of the plaintiff, who examined himself as P.W. 1 and P.W. 2 a caste man of the plaintiff''s village, the Trial Court recorded the finding that there was valid marriage between the plaintiff and Defendant No. 1 and the cruelty as alleged by the defendant-wife has not been established and the Respondent No. 1 is entitled to the relief of restitution of conjugal rights.

The Learned Addl. District Judge in appeal by the present appellant, on consideration of the evidence of P.Ws. 1 and 2 the Respondent No. 1 himself, the written statement of the appellant and the conduct of the parties, found a valid marriage in absence of evidence from the appellant to disprove the marriage. The Learned Appellate Court also found no materials with regard to the allegation that the plaintiff husband had kept concubine in his home. It has been observed that no credence should be given to the testimony of the appellant since there is variance between the written statement and the evidence given in the Court. The Courts below having found concurrently that the appellant is legally married wife of Respondent No. 1 and without sufficient cause, was withholding her from the society of the Respondent No. 1, the plaintiff was entitled to a decree for restitution of conjugal rights.

The main thrust of the argument of the Learned Counsel for the appellant is that (a) whether the appellant-wife could be asked to return to the matrimonial home to stay with the husband, when it was the specific case of the appellant that she was treated with physical and mental cruelty by her husband; (b) whether both the Courts below, are right in directing restitution of conjugal rights, without recording a finding as to whether the suit was maintainable, the delay in filing the suit having not been explained by the plaintiff, when admitted case being that the appellant left the matrimonial home since 5.10.1978 and the suit was filed on 22.2.1980.

The first contention of the Learned Counsel has to be rejected since the Learned Rrial Court as well as the Appellate Court on consideration of materials on record have concurrently found on facts that cruelty, the defendant-appellant alleged against the plaintiff, could not be proved and hence the contention was negative.

Peculiarly in the suit, even though the defendant-appellant filed a written statement, the defendant in his evidence as D.W. 1 denied to have filed any such written statement. The parents were impleaded as Defendant Nos. 2 and 3 but they did not contest the suit by filing their written statement nor they were examined as witnesses to support the case of their daughter-Defendant No. 1. Both the Learned Courts below, on the basis of the evidence of plaintiff P.W. 1 and P.W. 2 a caste man of plaintiff''s village, have come to concurrently hold that the plaintiff had married Defendant No. 1 according to Hindu Customs and rites following caste (Mali) customs at the plaintiff''s village Sukha in the month of Chaitra, 1977 whereafter they led a happy conjugal life till Aswina, 1978 when she was taken by Defendant No. 2 to his village on the occasion of "Bhaijuinta" and thereafter she has not returned in spite of request of the husband-plaintiff. The defendant-wife has admitted to have lived in the house of the plaintiff during the aforesaid period, being left by the Kalakrushna, a relation of the defendants. It was also alleged in the written statement, which of course has been denied during her evidence in Court testimony that the plaintiff used to have unnatural sexual act with her in a drunken state and that the plaintiff had kept a concubine in spite of protests, resulting in her mental cruelty. The Learned Courts below have rightly not relied on the sole testimony of Defendant No. 1 which was prevaricating and contradictory. In such view of the matter, since on the basis of materials on record, the Learned Trial Court as well as the Appellate Court on facts have held a valid marriage in normal circumstances, the plaintiff has a right to normal conjugal life and company of the wife. The allegation of mental cruelty and physical torture has been disbelieved by both the Learned Courts below in absence of any cogent material on record.

In view of the specific plea of the appellant-Defendant No. 1 that she had not filed any written statement, his evidence rightly has not been given full credence specially when her parents who had been impleaded as parties as Defendant Nos. 2 and 3 have even not come forward to give evidence, in support of their daughter, the Defendant No. 1 or opposing the claim of the plaintiff, it is relevant to notice the provisions of Rules 1, 5 and 10 of Order VIII of CPC. In view of the aforesaid provisions, in absence of a written statement, the Civil Courts may proceed to pronounce the judgment on the pleadings and evidence of the plaintiffs. The defendant has also not been able to demolish the evidence of P.W. 1 and 2 by successfully cross-examining the plaintiff''s witnesses as has rightly been held by the Learned Courts below. The Learned Courts below have found on fact that the plaintiff had been repeatedly approaching the defendants for return of Defendant No. 1 to lead a peaceful conjugal life, then approached the Panchayat twice and having failed in his attempts, issued notice and ultimately filed the suit and therefore the delay in filing the suit has been properly explained in absence of any evidence to the contrary adduced by the defendants.

In such view of the matter, the appeal fails and accordingly dismissed. But in the fact situation of the case, there shall be no order of cost.