Rahul Gupta Vs Radhika Gupta

This appeal filed under Section 19 (1) of the Family Court Act, 1984 has been preferred by the husband/appellant against the judgment and decree dated 28.02.2024 passed by Principal Judge, Family Court, Raipur (C.G.) in Civil Suit No. 32/2022 whereby the application preferred under Section 9 of the Hindu Marriage Act, 1955 by the plaintiff/ husband seeking restitution of conjugal rights, was dismissed. The parties to this appeal shall be referred herein as per their description before the learned Family Court.

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Plaintiff/husband filed application under Section 9 of Hindu Marriage Act seeking restitution of conjugal rights before the Family Court on the ground that the marriage of the plaintiff and the defendant was solemnized on 24/11/2007 at Sunita Park, Raipur (CG) according to Hindu rites and rituals. From their wedlock, three children namely Anshita Garg aged about 13 years, Ashita Garg aged about 09 years and Ansh Garg aged about 04 years were born. After the marriage, the defendant/wife was pressurizing the plaintiff/husband to live separately from his parents. The defendant/wife harasses and defames the plaintiff/husband and his parents by making false allegations against them in the society.

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The plaintiff/husband also pleaded that on 21/11/2020, he got the wife’s uterus operated and on her insistence, she was sent to her maternal home along with the children on 11/12/2020 for rest. On 26/03/2021, the husband/ plaintiff along with his father, went to his in-laws' house to bring the wife/defendant back, when the husband's in-laws insulted and pushed the husband/ plaintiff and his father and put a condition that she will come back only when the husband/ plaintiff leaves his parents and lives separately and also threatened to accuse the husband/ plaintiff and his parents of mental torture and domestic violence, then somehow after convincing them, the defendant/wife and the children were brought back to Raipur. Even after coming back to Raipur, the defendant/wife started quarreling continuously, insisting on separation and on 06/09/2021, she again went to her maternal home. Due to mental torture being given to the family, the mother of the husband/ plaintiff suffered a heart attack on 13/09/2021 and when the defendant/wife was informed, she called it a drama. On 17/09/2021, the defendant/wife returned and started quarrelling with the mother of the plaintiff/husband, then, as per the wish of the wife, the people of the society permitted her to live separately in the upper portion of the house from 15.10.2021. The defendant/wife did not even keep the plaintiff/husband with her. The behaviour of the wife became more aggressive and she started demanding money repeatedly. She repeatedly quarrels with the plaintiff/husband and threatens to commit suicide. The

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plaintiff/husband informed the defendant/wife and lodged a complaint with the State Women's Commission.

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The plaintiff/husband also pleaded that it had been two months since the defendant/wife was living separately, when she told the plaintiff that on 24/12/2021 her parents were coming to take her and she wanted to forcibly take away the three children with her against their wish. The husband could not stop one of the children as he was 4 years old, but to stop rest of the children, he filed an application to the women's police station and sought their help. In this way, the wife could not take away two children. The wife makes the husband and his parents mentally distressed, despite that, the plaintiff/husband and his family still love and care for the defendant/wife. The wife is currently living separately from the husband at her maternal home in Ambikapur with her younger child, without any sufficient reason. Therefore, the plaintiff/husband has prayed that the application filed by him may be allowed.

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In her written statement, wife/defendant denying the adverse allegation levelled by the husband/plaintiff, stated that the husband/plaintiff and his family members have unanimously harassed her physically, mentally and financially. She has been humiliated and harassed on account of demand of dowry. The husband/plaintiff and his family members have also distributed the security deposit amount available with the defendant/wife without her knowledge and consent. The husband/plaintiff and his family

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members ousted the wife/defendant from the house demanding dowry. Since then, the wife is dependent on her parents and is residing at their home in Ambikapur. Therefore, she prayed to reject the application filed by the husband.

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On the basis of pleadings made by both the parties, learned Family Court framed the issues and after appreciating oral and documentary evidence, by its judgment and decree dated 28.02.2024 dismissed the application filed by the plaintiff/husband. Hence, this appeal.

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Appellant in person states that the learned Family Court failed to consider that the respondent/wife had declined to offer evidence of her statements on oath. Section 9 of the Hindu Marriage Act, 1955 prioritizes mutual understanding over the traditional arbitration process, putting special emphasis on settling disputes through mediation and conciliation, addressing the issue by understanding the two parties and reducing the likelihood of further conflict. The learned Family Court ignored the petitioner/appellant's request, despite the fact that Civil Procedure Code Order 10 allows the Court to examine the parties since the respondent wife declined to answer a crucial issue about the lawsuit. The Court may declare judgment against the respondent or issue an order pertaining to the suit by invoking the provisions of Order 10 Civil Procedure Code or Section 165 of the Evidence Act, 1872, as well as the demand for evidence in a family Court proceeding and the pleader's incapacity to respond to the

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questions. As per Order 18 under Rule 2(2) Civil Procedure Code allows for the demand of evidence in family Court proceedings, however the Principal Judge Family Court Raipur ignored the petitioner/appellant's request. As per Order 18 Under Rule 3 Civil Procedure Code permits the other party to reply on the evidence produced in the suit or proceeding of a family Court but the reply was not sought by Principal Judge Family Court Raipur ignoring the request of the petitioner/appellant. The impugned judgment is based on conjectures and assumptions and is not supported by the facts and circumstances of the case. The learned Family Court has failed to properly appreciate the intent of the plaintiff/appellant, and has fallen into error in not finding that the preponderance of probability was in favour of the plaintiff/appellant.

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The impugned judgment is erroneous both on facts as well as law and thus unsustainable in the perspective of the law. Appellant/husband submitted the evidence of respondent/wife leaving appellant’s society in form of the copy of application, filed by the appellant at Mahila Thana, Raipur along with the petition. The respondent wife has filed a suit under Section 10 of Hindu Marriage Act 1955 for the legal separation, consequently the appellant successfully proved the fact that respondent wife has deserted the appellant. Section 9 of the Hindu Marriage Act 1955 safeguards the interest of children.

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There was insufficient evidence led by the respondent/wife to prove the reasonable excuse for withdrawal from the society of the appellant. The respondent wife made false statements on oath and levelled false allegations against the appellant/husband without any evidence, she is not entitled to any reliefs from the Court as a person who does not come to Court will clean hands is not entitled to any relief. The FIR registered against the appellant by the respondent wife after the appellant husband instituted the case for restitution of conjugal rights casts doubt on her assertions and ill intent. Therefore the impugned judgment and decree are liable to be set aside.

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On the other hand, learned counsel for the respondent/wife supports the impugned judgment and submits that the learned Family Court minutely appreciated the oral and documentary evidence and rightly dismissed the application filed by the appellant/husband. He further submits that criminal case under Section 498-A of IPC is still pending against the appellant before the concerned Criminal Court, therefore, the respondent/wife has sufficient cause to live separately from the appellant/husband. Hence, this appeal being without any merit is liable to be dismissed.

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Reliance has been placed on the decision of this Court in the matter of Neha Thakur Vs. Durgesh Thakur; AIR 2023 CHHATTISGARH 29 , decision of Gauhati High Court in the matter of Rakesh Phukan Vs. Smt. Juri Boruah; AIR 2014 GAUHATI

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68, decision of Andhra Pradesh High Court in the matter of P. Lavanya Vs. P. Dinesh Ra; AIR 2013 ANDHRA PRADESH 116 & decision of Punjab and Haryana High Court in the matter of Sadhu Singh Balwant Singh Vs. Smt. Jagdish Kaur Sadhu Singh; AIR 1969 PUNJAB AND HARYANA 139.

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Heard counsel for the parties and perused the material placed on record.

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8.It is an admitted position before the learned Family Court that the marriage between the parties was solemnized on 24.11.2007 as per Hindu rites and rituals and from their wedlock, 3 children were born. Appellant filed an application under Section 9 of the Hindu Marriage Act against the respondent/wife before the learned Family Court for restitution of conjugal rights.

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On the basis of pleadings of both the parties, learned Family

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Court framed following issues which are as under:

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Appellant/husband examined himself as A.W.-1 whereas the respondent/wife examined herself as N.A.W.-1.

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In his cross-examination, appellant/husband (A.W.-1) admitted that the respondent/wife has lodged FIR under Sections 420 & 498A of IPC against him and his father.

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Respondent/wife (N.A.W.-2) also stated against the appellant/husband. She lodged FIR for the offence punishable under Sections 420 and 498-A of IPC against the appellant/husband and in support of which, she also filed copies of charge-sheet bearing Crime No. 33341066220729/2022 and Crime No. 0003/2023. Further, she filed certified copy of order dated 16.01.2023 (Ex.D/1) passed by Executive Magistrate, Raipur (C.G.).

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Section 9 of Hindu Marriage Act provides as under:-

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“ 9. Restitution of Conjugal Rights -¹ [***] When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.”

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Appellant/husband admitted that the respondent/wife lodged FIR against him and it is also an admitted position that criminal trial is still pending against the appellant and as per Ex.D/1, Executive Magistrate had given the custody of minor son Ansh to

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respondent/wife, therefore, it is quite clear that complaints were filed by the respondent/wife against husband for demand of dowry and custody of her child and criminal case is still pending against the appellant/husband.

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In the matter of Neha Thakur (supra) , this Court held in para 10 as under:-

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“10. During the course of submission, on a query being made to the parties, it is submitted that the case under Section 498-A of IPC and Domestic Violence Act are still pending before the Judicial Magistrate, Durg. It is further stated that the charges have been framed in such criminal case and as a consequence the trial has commenced. Therefore, if prima facie, the Judicial Magistrate found the charges are required to be framed as per the statement of the wife and the other witness then until the case is adjudicated, in our considered view, erasing the allegation of cruelty at this stage would amount to pre-judge the entire issue. Facts may unfold the trial and as a consequence it may result into conviction or acquittal, but these facts cannot be pre-judged by this Court. Prima facie as on date the charges have been framed in a criminal trial, the presumption of cruelty would follow unless demolished in trial. Consequently, if the wife has withdrawn from the company of other whether it was a justifiable cause or not can be arrived at after conclusion of the trial. As of now, considering the pendency of criminal case, it would not be justifiable for the Court to press upon the appellant to join back to the company of the husband and if the cruelty really exists then it may have a serious repercussion to force the appellant wife to join the company of husband. It is a trite law that the act of the Court cannot harm or

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prejudice the right of any individual. In the backdrop of the fact that the criminal cases are pending against the husband under Section 498-A of IPC, we do not consider it proper to continue the order of restitution of conjugal rights.”

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In light of above, in present case, the learned Family Court also found that a criminal case is pending against the appellant/husband and decided both the issues against the appellant/husband. As of now, considering the pendency of criminal case, it would not be justifiable for the Court to press upon the respondent/wife to join back to the company of the appellant/husband and if the cruelty really exists then it may have a serious repercussion to force the respondent/ wife to join the company of appellant/husband. Therefore, the finding recorded by the learned Family Court is justified and in accordance with law and requires no interference by this Court.

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