Dismissed

Smt Banani Roy Laskar Mazumder v. Sibsankar Roy Laskar

Gauhati HC7 May 2018Mat.App./4/2015

Case brief

AI extract

What is this about?

Appeal against judgment granting restitution of conjugal rights. The High Court dismissed the appeal, holding the wife failed to prove reasonable cause for leaving marital home and upheld lower court finding of decree favoring husband.

What did the court decide?

Appeal dismissed; judgment and decree of lower court allowing application for restitution of conjugal rights upheld.

Smt Banani Roy Laskar Mazumder Vs Sibsankar Roy Laskar — Matrimonial and Divorce | Gauhati HC (2018)

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Page No.# 1/4

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GAHC010114132015

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : Mat.App. 4/2015

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1:SMT BANANI ROY LASKAR MAZUMDER

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W/O SRI SIBSANKAR ROY LASKAR, D/O SRI HARADHAN MAZUMDER, R/O MISTRY PATTY NEAR BRAMMHA MANDIR P.O. and P.S. LUMDING PIN 782447, DIST. NAGAON, ASSAM.

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VERSUS

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1:SIBSANKAR ROY LASKAR

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S/O DR. S.S. ROY LASKAR, R/O RLY QTR NO.K 15B, KALIBARI COLONY, LUMDING, PIN 782447, P.O. andP.S. LUMDING, DIST. NAGAON, ASSAM.

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Advocate for the Petitioner : MR.N K KALITA

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Advocate for the Respondent :

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BEFORE

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HON’BLE THE CHIEF JUSTICE MR. AJIT SINGH HON’BLE MR. JUSTICE PRASANTA KUMAR DEKA

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07.05.2018

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(P.K. Deka, J)

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Heard Mr. N.K. Kalita, the learned counsel for the appellant and Ms. B. Devi, the learned counsel for the respondent.

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The present appellant is the wife of the respondent who preferred an application under Section 9 of the Hindu Marriage Act, 1955 praying for a decree for restitution of conjugal rights

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Page No.# 2/4

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between the parties to this petition and for a further direction to the present appellant for resuming the cohabitation with the respondent-husband. The respondent as the petitioner in Title Suit (R) No. 91/2012 before the Court of learned Additional District & Sessions Judge, Hojai preferred the said application under Section 9 of the Hindu Marriage Act, 1955 stated that both the parties to this appeal were married on 18.11.2010 as per the Hindu rights and the rituals. They started their conjugal life in the parental house of the respondent-husband whereafter the present appellant-wife started showing disrespect towards the parents of the respondent-husband and elder family members.

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On 10.11.2011 the present appellant-wife left the company of the respondent-husband along with her stridhan. She again came back whereafter on 25.05.2012, the appellant-wife left the matrimonial place on the pretext of attending ‘Puja’ and she did not return from her paternal place for continuing the matrimonial relation with the respondent-husband. Various requests though made were not paid heed to by the appellant-wife following which the application for restitution of conjugal life was preferred.

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The appellant-wife as the opposite party filed her written statement wherein she denied the averments made in the plaint by the respondent-husband. It is the contention of the appellantwife that both the respondent-husband and his family members used to torture her both mentally and physically. The respondent-husband touched a female student of his school. She issued notice dated 09.06.2012 for her maintenance etc. from the respondent husband and accordingly, sought for dismissal of the suit.

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On the basis of the pleadings, the learned Trial Court framed the following issues.

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“ (1) Whether the O.P. withdrew herself from the society of the petitioner without any reasonable cause?

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(2) Whether the petitioner is entitled for an order of direction to the O.P. to join the conjugal life with the petitioner from this Court?

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(3) Whether the petitioner is entitled for any other relief/reliefs?”

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Both the parties adduced evidence and the learned Court below after considering materials on record allowed the application vide judgment and decree dated 30.08.2014. Being aggrieved by the said judgment and decree dated 30.08.2014, the appellant-wife has preferred this appeal challenging the findings of the Court below.

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Mr. Kalita, the learned counsel for the appellant, submits that the learned Court below failed to take notice of the pleadings made by the appellant-wife and without considering the evidence

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on record allowed the petition under Section 9 of the Hindu Marriage Act, 1955. It is also submitted that the learned Court below failed to decide the issues properly inasmuch as the initial burden of the respondent-husband could not be discharged in order to show that the appellant-wife withdrew herself from the company of the respondent-husband without any reasonable excuse. The appellantwife had to leave her matrimonial home due to physical and mental torture inflicted upon her by the respondent-husband and her-in-laws. That factual part was not considered by the learned Court below and as such, there are perversity in the findings given by the learned Court below.

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Ms. Devi, on the other hand, submits that the respondent-husband discharged his burden as required but the appellant-wife failed to show that owing to torture upon her she was compelled to leave the company of the respondent-husband.

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It is pertinent to mention here that this matter was referred for mediation which failed whereafter this matter has been taken up for its disposal on merit.

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Perused the record of TS(R) No. 91/2012 and the evidence on record. The learned Court below while discussing the materials on record considered the material piece of evidence of the witnesses of both the parties. The respondent-husband issued the Ext.1 notice to the appellant-wife asking her to resume the conjugal life for maintaining the status and prestige of his family. Not only that the appellant-wife was tried to convince for her cohabitation with the respondent-husband by his friends and relatives. The learned Court below took note of the evidence of the respondent-husband and considered the same wherein the mother of the respondent-husband in her cross-examination deposed that the appellant-wife caused physical torture on her. On the other hand, the appellant-wife in her evidence failed to substantiate the ill treatment meted to her both mentally and physically. The learned Court below rightly discarded the evidence which were not pleaded by the appellant-wife. In fact, the appellant-wife tried to bring on record that the respondent-husband with an ill motive touched the body of a girl student of Class-VII but the learned Court below rightly came to the finding that the same was not pleaded in the written statement. Merely, bringing such allegation cannot be a ground for leaving the company of the respondent-husband. There was no oral or documentary proof with respect to the said ill treatment of the girl by husband and the learned Court below held the said allegation as a vague one. Moreover, the appellant-wife failed to produce any notice claiming maintenance from the respondent-husband. Further, there is no evidence on record to establish the ill treatment caused on the appellant-wife by the family members of the respondent-husband. After considering the evidence along with the pleadings of the parties, the learned Court below relying the Division Bench decision of Kerala High Court in G. Ramakrishna Pillai -Vs- J. Vijayakumari

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Amma and Ors. reported in AIR 1990 Ker 55 rightly held that the defence ought to be taken in a proceeding under Section 9 of the Hindu Marriage Act, 1955 must be the reasons for non-continuation of the conjugal life similar to those required for judicial separation/divorce under Section 13 of the Hindu Marriage Act, 1955. The reasonable excuse for leaving the company by the appellant-wife must be grave and weighty which amounts to matrimonial offence.

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From the findings of the Court below, it is seen that the respondent-husband has been able to show that the appellant-wife had left his company without any reasonable cause. On the other hand, the appellant-wife failed to establish any good reason for leaving the company of her husband. The appellant-wife failed to establish that she was treated cruelly by the husband or his family members by adducing evidence of persons residing nearby the residence of respondent-husband inasmuch as the evidence of the mother of appellant-wife cannot be taken into consideration as that of an independent witness. There is no evidence to that effect and under such circumstances, the findings of the Court below cannot be held to be improper. It is true that in order to get the relief the plaintiff is bound to discharge his burden of proof which never shifts but the onus and once the material piece of evidence are on record of both the parties to the suit, in our opinion such discharge of onus/burden by the appellant-wife is not required. Once the parties adduced their respective evidence the same is immaterial and the Court must arrive on the basis of the material piece of evidence on record by appreciating the same in the proper perspective. As already discussed the appellant-wife had failed to establish any element of torture upon her by the husband or his family members proving her bonafide in leaving the company of the respondent-husband and the Court below rightly passed the judgment and decree in favour of the respondent-husband.

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Accordingly, this appeal stands dismissed on merit, no cost.

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JUDGE CHIEF JUSTICE

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Comparing Assistant

Smt Banani Roy Laskar Mazumder v. Sibsankar Roy Laskar

Case brief

What is this about?

What did the court decide?

Smt Banani Roy Laskar Mazumder v. Sibsankar Roy Laskar

Case brief

What is this about?

What did the court decide?

What the court decided

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