Vishal Anand vs Heena Anand

Radhakishan Agrawal, J

1) The present appeal is filed by appellant-husband challenging the judgment and decree dated 5.7.2018 passed in Civil Suit No.277-A / 2015 by which by learned 3rd Additional Principal Judge, Family Court, Durg (CG) allowed application of respondent wife filed under Section 9 of the Hindu Marriage Act, 1955 (for short 'the Act of 1955') and granted decree of restitution of conjugal rights.

2) Brief facts of the case, as pleaded by the wife, are that the marriage between the parties took place on 20.02.2009 in Bhilai as per Hindu customs. After marriage, she came to her matrimonial home where her in-laws were resided. At the time of marriage, her husband was working in Bombay. Later on, he was transferred to Kolkata. Presently he is working with Punjab National Bank (PNB) at Baloda, District-Janjgir Champa (CG). After some time of marriage, her mother-in-law and in-laws used to tease her for small things, though, she behaved with them respectfully. She gave birth to daughter on 13.04.2011 at Sector-9 Bhilai and is born in “Mool Nakshtra” so a “Mool Shanti Pooja” was organized at Bhilai on 10.05.2011 in her matrimonial home which she attended with her child. After completion, she went back to her parental home and husband went to Kolkata to join his duty. Wife was unable to go to her matrimonial home even after 40 days of her delivery because of some illness. Due to this reason, her in-laws got angry. Parents of respondent wife apologized to her in-laws, but they got angry and asked them not to bring her to house at Matri Kunj, Bhilai and directly go to Kolkata. On 24.06.2011, father of respondent wife along with respondent and her daughter went to Kolkata and apologize to her in-laws with folded hands but her in-laws have not accepted the same. Thereafter they came back to Bhilai on 25.06.2011. In Kolkata wife was performing all household works, but her Mother-in-law was regularly interfering in her happy life. Husband was also totally careless for wife and child. Due to above reasons, wife was living in her parental home from 01.08.2012. Wife wanted to live with her husband and to take care of her husband and in-laws.

3) The husband appellant in his written statement denied the allegations. After marriage wife went to Mumbai with him where he was working with Indian Navy. In April, 2009 husband was transferred to Kolkata, where husband remained posted for about three years i.e. till March, 2012. It was further pleaded that husband came to Bhilai on 6th April and on delivery date i.e. 30th April, 2011, he stayed in his in-laws and gave Rs.10,000/- cash for her delivery. After birth of her child “Mool Shanti Pooja” performed. It is also stated that wife along with her parents came to Kolkata on 24.06.2011 after about 2½ months from the date of birth of child. Parents of wife went back to Bhilai on very second day. Husband also contended that after living 22 days in Kolkata when husband went to Delhi for some official work, wife along with her in-laws came back to Bhilai on 16.07.2011 where wife lives for a week in her matrimonial home. On 24.7.2011 she went to her parental home to celebrate birthday of her brother. After that, parents of respondent wife came and took the wife with them after insulting them and leveling frivolous charges on them. On 23.09.2011 wife with her child and brother came to Kolkata and seeing his parents, she got very furious as a result his parents went back to Bhilai. Wife lived with husband in Kolkata. On 21.01.2012 she along with her brother, who had come with her to Kolkata, left the company of husband, without his permission, and came to Bhilai. Meanwhile, on 27.12.2011 wife made an oral complaint to the Officer In-charge, Navy Office, Kolkata that after marriage, appellant husband is harassing her and not taking care of her. In the said complaint, wife also alleged that even after marriage, her parents are not only bearing her expenses but also of her daughter and that she does not want to live with her husband. Wife again came to Kolkata on 24.03.2012. The husband had been transferred to Naval Base Karwar, Karnataka where husband came to Karwar along with wife and lived for three months. During stay in Karwar, wife made false written complaint on 22.7.2012 against husband appellant whereupon preliminary inquiry was conducted against husband. Wife came back to Bhilai on 30.7.2012 and since then wife is living separately from her husband.

4) It is also contended that based on aforementioned complaint of wife, a detailed departmental inquiry was initiated against husband, which continued upto March, 2013. In the meantime, wife made one more false complaint against him on 8th March, 2013 to Flag Officer Commanding, Karwar. Vide letter dated 30.05.2013 wife had informed the husband that he had to give monthly maintenance of Rs.6,000/- to the wife and child w.e.f. 13.03.2013 and in compliance thereof, husband is continuously paying Rs.6,000/- per month.

5) Learned counsel for the appellant husband would submit that the learned court below has committed illegality in not considering the facts that respondent wife is staying at her parental home out of her own will since 2012 and filed this petition in year 2015. Respondent wife stayed most of the time at her parental home before delivery and even after delivery against the wishes of husband. He further submits that wife committed cruelty upon appellant husband and his parents, therefore, she is not entitled to take advantage of her own wrong. Family Court has also not considered that the parental home of respondent wife is situated at a distance of about 100 mt from her matrimonial home at Bhilai. The respondent wife never cared to meet them and respect the parents of appellant husband. Learned Family Court committed illegality in not appreciating evidence in its correct perspective.

6) Per contra, learned counsel for the respondent wife would submit that her in-laws used to get angry on petty things. When she delivered a child in Bhilai hospital against the will of her in-laws, they get angry. Husband was very careless for his wife and also child. On 24.06.2011 respondent wife along with her parents went to Kolkata with her newly born child to live with her husband, where her father-in-law misbehaved with her parents even after offering apology by them.

Appellant husband deserted his wife respondent without any sufficient reason. She is living in her parental home since 2012. Judgment and decree passed by learned Family Court is well reasoned and well-merited. Learned family Court after evaluating the facts and evidence available on record, decree the application of wife for restoration of conjugal rights. Hence, this appeal filed by appellant husband is liable to be dismissed.

7) We have heard the learned counsel for the parties at length and perused the record.

8) PW-1 Smt. Heena Anand in her examination-in-chief supported her pleadings. She has stated that during her stay in Kolkata, she was mentally tortured by her in-laws, even her husband was negligent towards her and her child. Due to this attitude of her husband and regular mental torture by her in-laws, she got irritated and came back to her parental home on 1.8.2012 and since then she is living in her parental home. Husband never bothered to take her back nor he inquired about her. In her cross-examination, she denied to have made oral complaint against her husband to the Officer In-charge of Naval Office, Kolkata. She admitted that she only sought help. She has further admitted in her cross-examination that she sought help from officer saying that non-applicant is harassing her a lot, he is not fulfilling her daily needs nor giving her money for expenses. She further stated in her cross-examination that upon transfer of non-applicant to Naval Base Karwar (Karnataka), she went there and lived with non-applicant husband for about three months. She admitted that on 22.7.2012 she made written complaint against her husband in Women Organization of Naval Base, Karwar and based on which, a preliminary inquiry was conducted against non-applicant, which continued for 06 days. After completion of said inquiry, she along with her daughter came back to Bhilai and since then she is living separately from her husband in her parental home.

9) Husband (DW-2) stated in examination-in-chief supported his pleadings. He has stated that on 22.7.2012 wife made oral complaint against husband to the Officer-in-charge, Naval Office, Calcutta, due to which husband had faced detailed enquiry. It is also stated that during posting of husband in Naval Office, Karwar (Karnataka), wife along with daughter lived with husband for about three months. Here also wife submitted a complaint against him on 22.7.2012 based on which again preliminary inquiry was conducted against husband. On 30.7.2012 husband along with wife and his daughter left for Bhilai, where parents of husband had come to take their grand daughter and daughter-in-law with them, but wife without saying anything to husband, went to her parental home along with her brother and since then she is residing separately from husband. Husband also stated that in between wife forwarded complaint dated 8.3.2013 against him to Flag Officer Commanding, Karwar and as wife did not appear in enquiry, husband alone had to face that enquiry and eventually vide letter 30.5.2013 husband was informed that he is required to pay maintenance of Rs.6,000/- per month to wife and child w.e.f. 13.3.2013.

10) Husband admitted that his parents house and in-laws house are situated in same colony. He has admitted that complaint ExP-1 was sent by wife to Naval Officer. ExD-2 is the complaint filed by mother-in-law against her daughter-in-law before the Chhattisgarh State Women Commission, Raipur. ExD-5 is the letter written by the Chhattisgarh State Women Commission to Commandant, Headquarter Naval Base, Karwar (Karnataka) on 25.10.2012 in which it is mentioned that the matter relates to family dispute and now Smt. Heena has no objection to live in her matrimonial home during visit of her husband. ExD-8 is the complaint filed by parents of husband against their daughter-in-law in Mahila Thana, Durg alleging mental torture.

11) Smt. Reeta Pandey (DW-1) admitted in her cross-examination that mother of Vishal Anand (appellant) has never complained that Heena (respondent) does not do any household work, meaning thereby respondent wife was doing household works.

12) On close scrutiny of evidence available on record, it shows that after marriage wherever husband gets transferred wife was with him. Though husband in his evidence denied all adverse allegations leveled against him but his evidence shows that during his posting in Mumbai and Karwar (Karnataka), wife was with him. The in-laws of respondent wife used to frequently visit and interfere in marital life of respondent wife, which is also evident from the statement of DW-4 that after January 2012, he along with respondent wife and her parents tried to reconcile the matter between appellant and respondent, but mother-in-law of respondent wife had put three onerous conditions to keep respondent wife with them as a result of which reconciliation between them failed.

Document (ExD-7) is the letter addressed to appellant husband by the Captain, Commanding Base, Naval Base, Karwar, informing him that total sum of Rs.6,000/- per month, payable to his wife and daughter towards maintenance, will be deducted from his pay and allowances. This letter also contains a direction of recovery of arrears of twelve months in equal installments from pay and allowance of appellant husband. The contents of this letter establish that respondent wife was living with husband wherever he gets transferred and appellant-husband was negligent in maintaining his wife and daughter and even after direction of the Department, he did not bother to pay maintenance amount to them for a period of 12 months.

Furthermore, there is nothing on record indicating that prior to January, 2012 or thereafter appellant husband had made any effort to bring back his wife and she refused to go back to her matrimonial home. On the contrary, evidence reflects that wherever husband gets transferred, wife accompanied him. After January, 2012, wife made effort to save her marital life by visiting place of appellant husband but effort of reconciliation proved to be futile as appellant husband and his family members were not willing to keep her. Filing of application for restitution of conjugal rights by respondent wife also indicates her willingness to resume cohabitation with appellant husband.

Complaint made to In-charge Naval Officer by wife shows that husband has neglected and was careless towards his wife and daughter and was not paying for the household expenses so it was very difficult for wife to have cohabitation with husband. In the facts and circumstances of the case, it can be easily presumed that infact wife has not deserted the husband.

13) From analysis of evidence, learned Family Court has rightly held that husband plaintiff has failed to prove that wife has deserted him without any reason. We do not find any good ground to interfere with the impugned judgment and decree of restitution of conjugal rights granted in favour of respondent wife and against appellant husband. Appeal being meritless is liable to be and is hereby dismissed. No order as to costs. cree drawn-up accordingly.