Tarsem Lal vs Surindera Rani

J.V. Gupta, J.—This Appeal is directed against the judgment and decree of the Subordinate Judge, First Class, Phillaur, dated October 20, 1986, whereby the petition filed on behalf of Tarsem Lal, the Appellant husband, u/s 9 of the Hindu Marriage Act, (hereinafter called the Act), for restitution of conjugal rights was dismissed.

The marriage between the parties was solemnised in June, 1978. They lived as husband and wife and two children were born to them out of this wedlock who died subsequently. According to the Appellant, in August, 1980, when he had gone for work, his wife, the Respondent, left his house without his knowledge She also took away ornaments etc. with her. The Appellant went to her parents'' house where she admitted her fault and promised to accompany him. but she did not fulfil her promise as such. Later on, compromise was effected on January 20, 1983, and she started living with him. This time also, she did not stay for a long time with him and on April 20, 1983, she left the house without his knowledge The Appellant further alleged that she did not return since then although efforts were made by him for bringing her back. He pleaded that he was always ready and willing to keep her, but she had withdrawn from his society without reasonable excuse. In the written statement, the wife denied the allegations levelled by the her husband. She pleaded that soon after the marriage the Appellant started maltreating her and she was turned out of his house after giving a severe beating. At that time, she was pregnant. In the year 1982, the Appellant had filed a petition for restitution of conjugal rights whereas she had filed a petition u/s 125, Code of Criminal Procedure for the grant of maintenance Therein, a compromise was arrived at between the parties on January 20, 1983, and she started living with him. However, she was again maltreated and was turned out of the house after giving her beating on April 8, 1983. At that time also, she was pregnant She filed the petition u/s 125 of the Code of Criminal Procedure, which was allowed, vide copy of the judgment. Exhibit R W. 2/A. She also alleged that the Appellant had filed an F.I.R. against her in which her chastity was attacked A copy thereof is, Exhibit R W. 1/A. Under the circumstances, he was not entitled to the decree for restitution of conjugal rights She also took the additional objections to the effect that the Appellant was estopped by his act and conduct from filing the present petition. It was liable to be dismissed on account of delly and that it had been filed as a counter-blast to the order of maintenance passed u/s 125 of the Code of Criminal Procedure. On the pleadings of the parties, the trial Court framed the following issues:

Whether the Respondent has withdrawn from the society of the Petitioner without reasonable excuse ?

Whether this petition has been filed after inordinate delay ? If so its effect ?

Whether the petition has been filed with a mala fide intention ?

Relief.

After discussing the entire evidence, the learned trial Court found under issue No. 1, that there were sufficient grounds for the wife to live separately. Under issue No. 2, it was held that the petition was not maintainable after an inordinate delay. Consequently, the petition u/s 9 of the Act, was dismissed.

The learned Counsel for the Appellant contended that the evidence on the record has not been properly appreciated by the trial Court. The statement of Joginder Pal, A W. 2(sic), was not considered According to the learned Counsel, the Appellant was entitled to the decree of restitution of conjugal rights

After hearing the learned Counsel for the parties and going through the relevant evidence on the record, I find merit in this appeal.

There is absolutely no explanation on the part of the husband why the wife did not want to live with him. Surprisingly, the husband even did not know about the birth of the second child to her who died subsequently. Both the times, she was turned out of the house when she was pregnant. Not only that, F. I. R., Exhibit R. W. 1/A, was lodged against her alleging unchastity on her part. It appears that the petition u/s 9 of the Act, was filed by him as a counter-blast to the order of mintenance passed u/s 125, Code of Criminal Procedure. In the maintenance order, Exhibit R. W. 2/A, passed in favour of the Respondent-wife, it was observed,-

What appears is that the real cause of differences between the parties is the alleged carrying on of the Respondent with the Tersem Kaur at Nurmahal." Revision against the said order was filed by the Appellant, and it has been stated at the bar that the same was dismissed. In these circumstances, the learned trial Court rightly observed, -

It would be evident from the judgment, Exhibit PW-2/A that on 13-4-83, the Respondent filed on application for maintenance which was decided on 24-1-1984 by the Court of Shri B. S. Mehndiratta, Judicial Magistrate, Ist Class, Nawanshahar. According to this judgment, a maintenance allowance of Rs 150/- per month was allowed to the Respondent by the Court. The present application for restitution of cojugal rights has been filed by the Petitioner after more than one year period from the date of decision of maintenance application and hence there is sufficient delay and it appears that only to get rid of that maintenance allowance, the present application has been filed.

As a matter of fact, in view of the evidence on the record, no meaningful argument could be raised on behalf of the Appellant to challenge the well reasoned findings of the trial Court.

Consequently, this appeal fails and is dismissed with no order as to costs.