Vijay Kumar vs Suman @ Pritam Devi

Sarojnei Saksena, J.—Husband-appellant has filed this appeal u/s 28 of the Hindu Marriage Act, 1955 (in short, the Act) against the judgment delivered by Shri S.C. Aggarwal, Additional District Judge, Gurdaspur, in Hindu Marriage Act Case No. 53 of 1989, filed u/s 9 of the Act.

Uncontroverted facts of the case are that the parties were married on December 6,1987. In this wedlock the respondent gave birth to a son on February 27,1989. They lived together in the matrimonial home at village Babowal upto March 30,1989. Since then they are living in their parental homes.

Appellant-husband filed a petition for restitution of conjugal rights, alleging that immediately after marriage the respondent was insisting for a separate residence, but due to his family circumstances he was enable to accede to her demand. She left the matrimonial home in July, 1988. In September, 1988 she was brought back by his parents. On March 30,1989, when the child was about a month old, respondent''s mother, her sister with her husband came to take back the respondent and the child. The appellant declined to sent her on the ground that let the child be of 40 days. On March 31,1989, again the respondent was called out of the house by her brother-in-law, who took her to her parental home. Respondent went with her brother leaving a month old child at his residence. On April 9,1989, this child was taken away by respondent''s parents with the help of the police. Thereafter thrice he went to her parental home with respectable to bring her back, but she always declined and insisted for separate residence.

The respondent in her reply controverted the alleged facts. She averred that since the inception of the marriage, the appellant was maltreating her. He and his parents were not satisfied with the dowry. They demanded dowry not only in the shape of articles like television and scooter, but the appellant also demanded Rs. 20,000/- for house repairs. She asked her parents but they were unable to satisfy their lust for dowry. She denied that she ever demanded separate residence for herself with the appellant. The appellant used to lock her in a room and did not give her food for a number of days. He levelled false allegations of unchastity and immorality against her and used to beat her even when she was pregnant. Due to this continuous maltreatment and cruelty", she was forced to write letters to her father. When her child was only a month old, she was again beaten and was turned out of the house: The child was snatched away from her and she was forced to leave the house in bare wearing apparel. Her dowry articles and ornaments were kept back by the appellant. On September 9,1989, at about 7 a.m. the appellant accompanied by his mother and two strangers came to her parental home and tried to forcible take away the child. When she resisted, she was beaten by the appellant. She got herself medically examined. When she was living in the matrimonial home, respectales from her village alongwith Lakhbir Singh Sarpanch came to her matrimonial home and they told the appellant to behave with her properly. Now she is not willing to join the appellant as she apprehends danger to her life.

On these pleadings issues were struck and parties'' evidence was recorded. The learned lower Court, relying on respondent''s evidence, held that she was maltreated by the appellant and was turned out of the matrimonial home, and that she had not withdrawn form the society of the appellant without reasonable and sufficient cause. Hence, the petition was dismissed.

Appellant''s learned Counsel took me through the evidence on record. He vehemently stressed that from the evidence on record, it is evident that the respondent is not willing to come back to the matrimonial home, though the appellant is ready to take a separate residence and is willing to give any security that she wants. He further submitted that the appellant has proved that she has deserted him without any reasonable excuse. She left one month''s old child in the matrimonial home and went with her brother-in-law on March 31,1989. Thereafter she never came back to matrimonial home. She has falsely stated that that on September 9,1989, she was beaten by the appellant, his mother and two strangers. The injury report is on record. She is alleged to have sustained only four injuries, and the doctor has admitted that three of these injuries can be self-inflicted and the fourth one can be caused by a fall. He further pointed out that September 9, 1989, was the date of appearance in this matrimonial case. So naturally this part of the evidence is unbelievable that on this very date he went to her parental home to kidnap the child and when resisted he gave beating to the respondent. He further submitted that she has falsely deposed that he or his parents, were dissatisfied with the dowry given or they made any further demand on that count. Conversely all through she was insisting that he should take a separate residence. As due to his family circumstances he was unable to reside separately, she left the matrimonial home on her own. Even thereafter thrice he, his father and other respectables of his village made attempts to bring her back but she always declined. This, according to him, the respondent has failed to prove any justification for her not joining the husband. To buttress his arguments, he has relied on Himansu Sekhar Rana v. Shrimati Tapati Rana 1994(2) H.L.R. 134 : (1994) DMC 595. and Gurcharan Singh v. Manjit Kaur 1986(1) H.L.R. 322.

The valiant effort of respondent''s learned Counsel in his effective persuasion and meticulous preparation is that the husband maltreated the respondent. When she was living in the matrimonial home, she was beaten by the appellant and was turned out of the matrimonial home on March 31,1989. Even her son was snatched away from her. Her motherly instinct compelled her to knock the door of the Court to obtain the custody of her one month old child and through the Court she could get the custody on April 9, 1989. He further contended that the appellant could not prove any reasonable cause for her withdrawal. The only explanation offered by him is that she wanted him to reside separately but as he declined, she left the matrimonial home. According to him, no married woman would leave the matrimonial home on such a flimsy ground. This contention is devoid of any substance that she herself left her son in the matrimonial home and went to her parental home with her brother-in-law. This plea is nothing but a camouflage to shadow his own act of turning her out from the matrimonial home by snatching away her child. Even after the institution of this petition on September 9, 1989 she was beaten by the appellant and his companions when she resisted their effort of taking away the child She has examined the doctor, who has proved the injuries sustained by her. The injuries can be self-inflicted and injury No. 4 can be caused by a fall, but there is no reason to disbelieve her on this point as her statement is fully corroborated not only by her brother and the doctor but also by the statement of Sarpanch Lakhbir Singh RW- 4. Thus, according to him, now if she does not want to go back to her matrimonial home, as she apprehends danger to her life, it cannot be said that she has no justifiable cause or excuse for withdrawing from the society of the appellant.

To cull out scope and ambit of this appeal, it is necessary to minutely scan the parties'' evidence to find out whether the wife-respondent has withdrawn from the appellant''s society without any reasonable cause or he is guilty of maltreating her and driving her out of the matrimonial home. In Himansu Sekhar Rana''s case (supra) the Calcutta High Court has held that in a petition u/s 9 of the Act once the factum of withdrawal from society by one of the spouses is proved, the reasonableness of the withdrawal has to be proved by the withdrawing spouse. The facts of Gurcharan Singh''s case (supra) are distinguishable. In that case, the wife left the matrimonial home. After a period of separation of 2 1/2 years, the husband filed a petition for restitution of conjugal rights. Even during trial many efforts were made to bring back the wife, but she declined to join. The Court held that the husband tried his level best to bring her back but she did not join the matrimonial home. Husband never demanded any money from the wife. Husband never gave her beating so as to justify her desertion of the matrimonial home. Thus, holding that the wife had withdrawn from the society of the husband without any reasonable excuse decree for restitution of conjugal rights in favour of the husband was granted.

In this case the appellant''s contention is that soon after the marriage, she wanted him to live separately and on this count alone she left the matrimonial home. He has further tried to make the Court believe that on March 31, 1989, leaving a month old child at the matrimonial home, the respondent went with her brother-in-law to her parental home and thereafter she never came back. No doubt, he has denied that he ever beat her or demanded dowry or maltreated her, but in the cross-examination he admitted that his wife got the custody of his son through the Court. If the facts as he wants the Court to believe would have been true, no Court would have granted the custody of the child to the mother- respondent. He has also stated that after she left the matrimonial home, thrice he made attempts to bring her back. He went to her parental home alongwith his father and respectables but she always declined. His father Om Parkash PW- 2 has corroborated him on these points. PW-3 Dharam Chand is a member of village Panchyat of Babowal. He has stated that when he went there and asked her to join the appellant, she declined to come back. This witness has admitted that she complained that the appellant used to beat her. This witness has tried to state that the appellant never beat her, but this part of his testimony is not at all reliable because he is not a member of the family of the appellant. He is not even his neighbour. Therefore, he could not have made such a bold assertion about the said fact. PW-4 is Vijay Kumar. He also went with the appellant for reconciliation. According to him, she insisted for separate residence. Though he also went for reconciliation with Dharam Chand PW-3 but he has not stated that she made a complaint that the appellant used to beat her.

Wife-respondent has testified that after marriage she was maltreated by her husband. He and his parents were not satisfied with the dowry. They started demanding T.V. set and a scooter. After a month of the Muklawa ceremony, when she went to her parental home she told her parents about this demand, but they were unable to satisfy their demand. When again she went back to her matrimonial home after three months, her husband and his parents asked her to bring Rs. 20,000/- to get the house repaired. Again she went back to her father and demanded Rs. 25,000/- but again he expressed his inability. When she came back to the matrimonial home, the appellent was very much annoyed and he beat her. Thereafter he started maltreating her. Sometimes she was kept confined in a room. Food was not offered to her. Her mouth was gagged and he used to threaten her that he would marry again. Compelled by these circumstances, she wrote two letters Exhibits R-land R-2 to her father. Even when she was in the family way, she was beaten by the appellant. She gave birth to a son on February 27,1989. When the child was only one month old, she was beaten and was turned out of the matrimonial home on March 31,1989, the child was snatched away from her. Thus, she was forced to knock the door of the Court on April 9,1989. On September 9, 1989, her husband, her mother-in-law and two strangers came to her parental home, tried to snatch away the child and when she resisted, she was manhandled by her husband causing her injuries. She was examined by a doctor. She has further stated that her father, Sarpanch of the village and other respectables made several attempts for reconciliation but the appellant always turned down their prayer. Compelled by these circumstances, she had to file a petition u/s 125 Cr.P.C. against her husband. She has denied that she ever wanted her husband to reside separately. She has also denied that on March 31,1989, she on her own left the matrimonial home, leaving her child there. She has clearly stated that she is prepared to join the appellant provided he gives security for her safety. She is duly corroborated by her brother Ramesh Kumar PW-2, Dr. Sukhbir Singh PW-3 examined her on September 9, 1989, and found four injuries on her person. Lakhbir Singh RW-4 is the Sarpanch of the village. He has corroborated her and has deposed that he alongwith her father and other persons went to the appellant''s house for reconciliation but the attempt proved abortive. He has also deposed about the incident which took place on September 9,1989, when she was beaten in her parental home by the appellant. Bawa Ram RW-5 is the brother-in- law of the respondent. He has also corroborated her. He has also deposed that the appellant beat her and turned her out of the matrimonial home two/three times. He alongwith Lakhbir Singh Sarpanch, Pritam Singh and Ors. went to her matrimonial home in June and August, 1988 to tell the appellant to behave with her properly. He has also stated that on April 2,1989, April 8,1989 and April 9,1989 all these persons went to her matrimonial home for reconciliation but with no result. He and her brother Ramesh Kumar RW-2 have also deposed that the respondent is willing to go to join him provided he furnished surety regarding her safety.

From the matrimonial home she wrote two letters Exhibits R-l and R-2 to her father, wherein also she has mentioned that she is being ill-treated by her husband and that her husband is trying to snatch away the child from her. These letters are dated June 27, 1988 and March 29,1989. This objection is meritless that these letters are ante-dated or ante-stamped.

Thus, it is apparent that instead of love she got hatred. She was expecting protective umbrella of matrimonial home but that was not provided to her. She was beaten and was turned out therefrom. Instead of harmony she got acrimony; instead of comfort she got beating. Though she was blessed with a son, the custody of the child was snatched away from her and she was turned out of the matrimonial home. Compelled by these circumstances, she moved a petition in the Court and secured the custody of her son. This is not the normal behaviour of a mother. Her son was only a month old. Even the wildest woman on earth would not behave like this. If really she wanted to leave the matrimonial home, she could have taken away the child also with her. In this context, her statement is more probable and plausible that her son was snatched away, she was beaten and was turned out of the matrimonial home. The appellant was a Police Constable. Now he is a Head Constable. His father is now a retired Head Constable. The woesome story of the desperate deserted respondent is writ large. Thus, it is proved that husband is guilty of constructive desertion. The appellant cannot be allowed to take advantage of his own wrong. Hence I find that the respondent has not withdrawn from the society of the appellant without any reasonable or probable cause. Rather she was turned out of the matrimonial home. Now she is not willing to join him as she apprehends danger to her life and this apprehension cannot be held to be unfounded. In my determined view, the Trial Court has rightly dismissed the appellant''s petition filed u/s 9 of the Act. Finding the appeal meritless, it is hereby rejected. The lower Court''s judgment and decree is affirmed.