Mahendra Kumar Sen Vs Smt. Sarita Sen

1 - Smt. Sarita Sen W/o Shri Mahendra Sen D/o Banvasi Sen @ Chandrashekhar Shrivas Aged About 31 Years R/o Prem Nagar (Bhairotal), Village - Surakachhar, Kusmunda Tahasil - Katghora, District - Korba (Chhattisgarh)

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... Respondent

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For Appellant	: Mr. J.N. Nande, Advocate
For Respondent	: Mr. Sunil Sahu, Advocate

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Hon’ble Smt. Justice Rajani Dubey,

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Hon’ble Shri Justice Bibhu Datta Guru

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C A V Judgment

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Per Rajani Dubey, J.

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This appeal is directed against the judgment and decree dated 07.07.2022 passed by the learned Principal Judge, Family Court, Raipur, Chhattisgarh in Civil Suit No. 505/2017 whereby the application filed under Section 9 of the Hindu Marriage Act by the appellant/husband for restitution of conjugal rights, was rejected.

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Before learned trial Court, it is an admitted fact that the marriage between the parties was solemnized on 28/04/2015 in Jain Gagal Bhawan, Nevra Ward No. 10 Nevra Tilda as per Hindu rites and rituals. From their wedlock, a daughter namely Ms. Dalshri was born on 06/07/2016 in Sony Hospital Tulsi Nevra. At present, both the parties are living separately.

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Appellant/husband filed application under Section 9 of Hindu Marriage Act for restitution of conjugal rights before the trial Court on this ground that after marriage, they both lived at Tilda Nevra. For about 1 year, the married life of both the parties went well, but for the last 8-9 months, the respondent/wife started quarrelling with the appellant/husband and went to her maternal home. The respondent/wife used to refuse the appellant/husband to bear the expenses of the education of the appellant’s elder sister and her daughter, the education of the younger sister's daughter and family expenses. The respondent/wife was more inclined towards her maternal home. She used to go to her maternal home almost every day and used to ask for money to spend at her maternal home. The behaviour of the respondent/wife was very rude towards the parents of the appellant, his elder sister and their children. Respondent/wife

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did not like the appellant’s elder sister. The respondent/wife used to tell the appellant/husband to take a separate house and live there.

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He further stated that the respondent/wife remained on rest for four months after delivery, thereafter the father, brother and sister-inlaw came to take her and on 16/11/2016, respondent/wife quarreled with the appellant/husband and went to her maternal home. The respondent/wife repeatedly pressurized the appellant/husband to stay away from his family. Being fed up, the appellant/husband called a meeting of social persons. The social persons got a written agreement of settlement between the appellant and the respondent on 14/12/2016, by which both of them assured to live their married life with mutual love and affection. Thereafter, the respondent/wife returned to the appellant’s house, but after two days, i.e. on 16/12/2016 at 9:30 a.m., she took her daughter along with her and left the house of the appellant. When the respondent/wife and her daughter were not at home, the appellant inquired from the father of the respondent and then he got to know that the respondent and the child had returned to their home. Thereafter, the appellant again applied into the society to bring the respondent back home. Thus, it is clear that the respondent/wife is unnecessarily troubling the appellant and the appellant is getting disturbed due to her frequent visits to her maternal home and the appellant's married life is getting affected. The appellant loves his daughter and wife very much. The appellant’s conjugal rights are being violated due to the rude behavior of his wife. The respondent is deliberately living separately from the appellant without any sufficient reason to mentally harass

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the appellant. Therefore, his application filed under Section 9 of the Hindu Marriage Act may be allowed.

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In her reply, except the admitted facts, the respondent/wife has denied all the averments made by the appellant/husband and stated that the appellant’s parents are healthy and earning. The appellant’s father works as a barber in the village and from which, he use to earn about Rs. 15,000/- per month. The applicant's elder sister herself runs a beauty parlor shop and earns Rs. 10,000/- per month by massaging women in the locality. In this way, the appellant’s sister is capable of maintaining herself and her daughter financially. The respondent has never stopped the appellant from spending on his family. The appellant’s sister used to beat her and appellant used to support her sister for the said act. She further averred that in the social meeting, the sister of the appellant touched the feet of all the persons present and apologized and swore not to harass her in future, but after third day of the settlement, the sister of the appellant again started harassing her to which, the appellant ignored and supported his sister. After sending the respondent to her maternal home, till date, he has never gone to take her, nor has he held any social meeting, nor has he made any application in any society. The respondent filed an application under Section 125 of Cr.P.C. before the Family Court, Katghora and vide order dated 07.06.2017, the Court directed the appellant to pay monthly maintenance amount of Rs. 3,000/- to the respondent and her daughter. To avoid this, the appellant has filed an application under section 9 of the Hindu Marriage Act before the trial Court in August 2017. If the appellant

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had wanted to stay with her, he would have himself gone to his inlaws' house and tried to bring her back. He has filed this application only to harass her. Therefore, the application filed by the appellant under section 9 of the Hindu Marriage Act, is liable to be rejected.

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Learned trial Court after appreciating the oral and documentary evidence, by its judgment and decree dated 07.07.2022 dismissed the application filed by the appellant/husband. Hence, this appeal has been filed by the appellant/husband.

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Learned counsel for the appellant/husband submits that the learned Principal Judge of Family Court Raipur has ignored the material evidence available on record and passed the erroneous judgment in a mechanical manner, contrary to the material available on record. The learned trial Court ought to have considered that the appellant has made all crucial efforts to resume the conjugal relationship with the respondent/wife but all efforts of the appellant have turned futile due to rigid and rude behavior of the respondent and she deserted the matrimonial home without any justifiable reason, therefore the impugned judgment is bad in law, hence it is liable to be dismissed. The learned trial Court has constantly ignored the material fact that the respondent even did not produce any reliable evidence to prove her untruthful/fabricated statements even she didn't show any reason as to why she left the matrimonial home. The appellant has deposed his evidence categorically that he is always willing to reside together with her wife but the learned trial Court overlooked the statements of the appellant and passed the erroneous judgment against the appellant.

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He further submits that the learned trial Court did not appreciate the oral and documentary evidence and gave wrong finding which is not sustainable in the eye of law. Therefore, the impugned judgment is liable to be set aside and respondent/wife be directed to reside with the appellant/husband and continue the conjugal relationship with him.

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On the other hand, learned counsel for the respondent/wife supports the impugned judgment and submits that the learned trial Court minutely appreciated the oral and documentary evidence and rightly dismissed the application filed by the appellant/husband. Hence, this appeal being without any merit is liable to be dismissed.

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

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It is not disputed in this case that the marriage between the parties was solemnized on 28.04.2015 and from their wedlock, one child was born on 06.07.2016 and it is also not disputed that the respondent/wife is living separately with the appellant/husband since 2016. In pursuance of the order dated 07.06.2017 passed by the learned Family Court, Katghora, the appellant/husband is paying maintenance of Rs. 3,000/- per month to the respondent/wife and her daughter.

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Appellant/husband examined himself as A.W.-1 to support his case against the respondent/wife whereas respondent/wife examined herself as N.A.W.-1 and her sister namely Lata Shrivas as N.A.W.-2.

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11.Appellant/husband stated that the respondent/wife left his home without any sufficient cause. He admitted this suggestion that the

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respondent/wife had made proposal to him that if he resides in Bilaspur then she is ready to live with him. He also stated that on 14.12.2016, he called the society meeting. Appellant filed an affidavit of Muleshwar Prasad Shrivas, President of Society but he did not appear before the trial Court for cross-examination.

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In her affidavit, respondent/wife stated that she is living separately because of cruel nature of her sister-in-law and she stated that if her husband stays away from her in-laws at places like Bilaspur or Raigarh or Champa and gives a written assurance of behaving well in future then she is ready to live with him.

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Sister of respondent/wife, Lata Shrivas (N.A.W.-2) also stated that the in-laws of the respondent misbehaved with her sister, therefore, she does not want to live with them. However, she admitted that they did not lodge any FIR against appellant- Mahendra Kumar Sen.

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Close scrutiny of statements of both the parties makes it clear that the respondent/wife only because of nature of sister-in-law towards her, did not want to live with her husband and she also stated in her affidavit that if the appellant lives in Bilaspur or Raigarh or Champa, then she is ready to live with him. For ready reference, para 13 of affidavit of respondent/wife is reproduced herein under:-

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“13. यह कि� यकि� मे�रा� पकि� कि�ला�सप�रा य� रा�यगढ़ य� ाማ��प� आकि� स्था�ोሪ� परा मे�रा� सस�रा�ला स� ��रा राह� औरा भकि�ष्य मे� ठी!� स� ��"� �राोሪ� �� लिलालि$� आश्��सोሪ ��, �& मे' उस�� स�था राहोሪ� �& �)य�रा ह*�। अन्यथा� ोሪह. ।"

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As per appellant- Mahendra Kumar Sen, he is an Assistant Teacher in Village Tilda Nevra. So, it is not possible for him to live with his wife at any other place. It is evident from the record that the

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appellant is trying to live with his wife whereas the respondent has failed to prove that she is living separately due to some sufficient reason and reasonable cause. The learned trial Court only considering the pleadings in maintenance application that the respondent is living separately due to some sufficient reason, allowed the maintenance application in favour of the respondent/wife. It is only thereafter that the appellant filed an application under Section 9 of the Hindu Marriage Act. It is well settled principle of law that in the proceeding under Section 125 of Cr.P.C., the learned trial Court has to inquire summarily only. Before the learned trial Court, appellant has proved this fact that he is working at Raipur and he is willing to keep his wife along with him whereas the respondent/wife is willing to live with him at Bilaspur or Raigarh or Champa.

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16. Section 9 of the Hindu Marriage Act provides as under :-

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“9. Restitution of Conjugal Rights- [***] 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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The facts and circumstances of the present case reflect that the attempts were made by the husband to save his matrimonial relationship. However, the learned trial Court only on the ground that

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the respondent has proved the sufficient cause of her living separately from the husband, arrived at the conclusion that the appellant/husband is not entitled for grant of decree of restitution of conjugal rights and passed the impugned judgment in favour of the respondent/wife by dismissing the application filed by the appellant/husband for restitution of conjugal rights.

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Looking to the statements of both the parties, facts and circumstances of the case, the entire evidence available on record as well as the conduct of the wife, we find that the respondent/wife is living separately from the appellant/husband without any sufficient cause. Thus, the findings recorded by the learned trial Court are not sustainable.

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In the result, the appeal stands allowed. The impugned judgment and decree dated 07.07.2022 are set aside. Respondent/wife shall go to the house of the appellant/husband and perform her matrimonial duties/obligations.

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Let a decree be drawn up accordingly.

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Sd/Sd/-

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(Rajani Dubey) (Bibhu Datta Guru) Judge Judge

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Ruchi

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RUCHI YADAV Digitally signed by RUCHI YADAV

Mahendra Kumar Sen v. Smt. Sarita Sen

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Mahendra Kumar Sen v. Smt. Sarita Sen

Case brief

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