Appeal against dismissal of restitution petition failed. Trial Court rightly held petitioner unauthorized due to breach of Hamipatram terms. Appeal dismissed.
Appeal dismissed; discretionary relief not granted.
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THE HON’BLE SRI JUSTICE R. SUBHASH REDDY AND THE HON’BLE SRI JUSTICE A. SHANKAR NARAYANA
CIVIL MISCELLANEOUS APPEAL No.337 OF 2004
JUDGMENT: (Per Hon'ble Sri Justice R. Subhash Reddy)
This Civil Miscellaneous Appeal, under Section 19 of the Family Courts Act, 1984, is filed aggrieved by the order, dated 11.11.2003, in O.P.No.319 of 2002 on the file of the Judge, Family Court, Visakhapatnam, whereby the petition filed by the petitioner/appellant herein, under Section 9 of the Hindu Marriage Act, 1955, seeking restitution of conjugal rights, was dismissed.
2. The marriage between the petitioner/appellant and the respondent was performed on 03.12.2000 at Simhachalam, Visakhapatnam. It is the case of the appellant that immediately after the marriage, he joined the company of the respondent for leading a happy life, but the respondent developed aversion towards him and used to abuse him in filthy language. Stating that he has love and affection towards his wife and that breaking down the marital tie at the age of 42 years is not good, the petitioner filed the present O.P. seeking restitution of conjugal rights.
3. Before the trial Court, the respondent filed counter affidavit denying the allegations levelled against her. It is the case of the respondent that the petitioner used to beat her by consuming alcohol and never bothered for her. It is stated that on 01.03.2002, the petitioner beat the respondent and sent her out of the house, due to which she took shelter at her brother’s house. It is also stated that the respondent filed M.C.No.76 of 2002 claiming maintenance from the appellant and that only to avoid payment of maintenance, the petitioner filed the present O.P. as a counter blast to M.C.No.76 of 2002 filed by the respondent. Hence, the respondent prayed for dismissal of the present O.P.
4. Based on the above pleadings, the trial Court framed the following point for consideration:
“Whether the petitioner is entitled for restitution of conjugal rights as prayed for?”
5. Before the trial Court, on behalf of the petitioner, he himself was examined as PW.1 and the lawyer’s notice, dated 22.04.2002, was marked as Ex.A1. On behalf of the respondent, she herself was examined as RW.1, apart from examining her brother as RW.2 and an independent witness as RW.3, and Exs.B1 and B2 were marked.
6. The trial Court, while appreciating the oral and
documentary evidence on record, has recorded a finding that the petitioner, having executed Ex.B1-“Hamipatram”, would have to look after his wife properly and as he failed to abide by the terms and conditions of the said document, he is not entitled for restitution as prayed for and, accordingly, dismissed the O.P. by the impugned order, dated 11.11.2003.
7. In this appeal, it is contended by the learned counsel for the appellant that without recording any valid reasons, the trial Court has dismissed the O.P., and that the respondent, on her own accord, has left the matrimonial house without any just reason and hence, prayed to allow the appeal.
8. The respondent is not served and there is no appearance on her behalf.
9. Having heard the learned counsel for the appellant, we have perused the impugned order and other material available on record.
10. Except stating that the brother of the petitioner deposited an amount of Rs.25,000/- in the joint account of the petitioner and the same was withdrawn by the respondent, there is no acceptable evidence on record to show that any amount was withdrawn by the respondent. Even otherwise, it is evident that the brother of the
petitioner was working in the same Bank in which the amount was deposited. It is not in dispute that the respondent already filed M.C.No.76 of 2002 claiming maintenance. Further, it is clear that the petitioner and his brother executed Hamipatrams, which are marked as Exs.B1 and B2, but they failed to abide by the terms of the said documents. Hence, we are of the view that the trial Court has rightly dismissed the O.P., and we do not find any merit in the appeal so as to interfere with the findings of the Family Court.
11. Accordingly, the Appeal is dismissed. Miscellaneous Petitions, if any, pending in this Civil Miscellaneous Appeal, shall stand closed. No order as to costs.
REDDY
__________________________________ JUSTICE A. SHANKAR NARAYANA 04th June, 2014 v v
THE HON’BLE SRI JUSTICE R. SUBHASH REDDY AND THE HON’BLE SRI JUSTICE A. SHANKAR NARAYANA
CIVIL MISCELLANEOUS APPEAL No.337 OF 2004
(Per Hon'ble Sri Justice R.Subhash Reddy)
4th June, 2014
v v
2 issues framed by the court
Whether the trial Court correctly dismissed the petition for restitution of conjugal rights due to the parties' failure to abide by the terms of the Hamipatram.
Whether the non-appearance of the respondent creates a merit for the appeal.
2 provisions across 2 enactments
Petitioner/Appellant
Respondent
R. SUBHASH REDDY
A. SHANKAR NARAYANA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
