High Court Punjab-Haryana High Court

Prem Chand Gupta vs Nirmal Gupta on 7 May, 2009

Punjab-Haryana High Court
Prem Chand Gupta vs Nirmal Gupta on 7 May, 2009
F.A.O. No. 57-M of 2001                           -1-

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      IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                      CHANDIGARH



                      F.A.O. No. 57-M of 2001
                      Date of decision: 7.05.2009

Prem Chand Gupta                                  ...Appellant

                              Versus

Nirmal Gupta                                      ...Respondent


CORAM: HON'BLE MR. JUSTICE S.D.ANAND.

Present:   Mr. V.M.Gupta, Advocate for the appellant.

           None for the respondent.

                           *****

S.D.ANAND, J.

The appellant-husband is in appeal against rejection of

his plea under Section 9 of the Hindu Marriage Act (hereinafter

referred to as the “the Act”) by the learned Trial Court, vide order

dated 2.5.2000.

The marriage between the parties was soleminsed on

5.3.1988. Two issues (a daughter and a son) were born out of their

union on 8.12.1988 and 21.10.1991 respectively. Both were in bank

employment at the time of their marriage. The appellant was posted

at Patiala; while the respondent was posted at Bathinda. Sometime

thereafter, the respondent was transferred to Samana, District

Patiala. During her tenure over there, she used to commute daily

from Patiala. On 30/31.8.1994, the respondent withdrew “from the
F.A.O. No. 57-M of 2001 -2-

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society of the petitioner”. The appellant is “ready to keep the

respondent with him at Patiala, the matrimonial house of the parties.”

Throughout the petition, the only averment made by the

appellant-husband was that the respondent had withdrawn from his

company without any reasonable cause and that he is ready to keep

her at the matrimonial house at Patiala.

The respondent-wife also conceded that she stayed with

the appellant till 30/31.8.1994. However, she made a different

presentation about the circumstances under which she had

withdrawn from the society of the appellant. The appellant and his

relations were not satisfied with the adequacy of the dowry brought

by her. They used to always taunt her on that account. The

appellant would every month make her part with the entire salary.

The mother and a named cousin sister of the appellant used to

humiliate the respondent on account of the birth of a female child to

her and also on account of inadequacy of the gifts in the form of

‘Chhuchak’. On 15.6.1990, a named younger brother of the appellant

threw her off his scooter which was being driven at a fast speed. The

intention was to kill her. She was got hospitalised by her three

named colleagues; while the aforementioned brother of the appellant

fled the spot. It were the parents of the respondent who got her

treated at the hospital. After discharge from the hospital, she was

taken to Bathinda. She resumed cohabitation shortly thereafter on

the assurance of the appellant and his relations that she would be

treated well. However, things did not really change for her. In the
F.A.O. No. 57-M of 2001 -3-

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year 1991, she was tortured physically and mentally when she was in

a family way. She intimated her torture to her brother vide letters

dated 17.5.1991 and 16.7.1991. On receipt thereof, she was fetched

by the members of her natal family who brought to her natal house.

On 15.1.1992, the appellant and his father went over to the natal

house of the respondent and fetched her on a promise of good

behaviour. However, on the night of 19.4.1992, she was belaboured

by the appellant and a named brother of his even when she was in a

family way. When she intimated it to her parents, her father, brother

and uncle came over to the matrimonial house of the respondent.

They too were humiliated and slapped. However, the relations of the

respondent first took her to Bathinda and, on account of her

condition, she was shifted to Chandigarh where she was diagonsed

to be a case of missed abortion. Again, there was a panchayat on

22.11,1992 and she resumed cohabitation at the matrimonial house

at Patiala. Again, during the period of her stay over there, she was

forced to part with her salary besides certain cash amount of

Rs.15,000/- and an FDR of Rs.3000/-.

The mother-in-law of the respondent died a natural death

on 11.10.1993. However, respondent was falsely accused of being

accountable for her death.

On 29.8.1994, the death anniversary of her mother-in-law

was held. There after, the respondent was beaten up but was saved

by the neighbourer. On the night intervening 30/31.8.1994, the

respondent over heard the appellant and his relations conspire her
F.A.O. No. 57-M of 2001 -4-

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elimination. She left the matrimonial house early in the morning,

alongwith her two children, and took shelter in the house of a named

colleague from where she was fetched by her brother.

The trial proceeded on the following issues:-

1) Whether the respondent is living separately for

sufficient and reasonable cause ?OPR

2) Whether this Court has no jurisdiction to try the

present suit? OPR

3) Whether the petitioner is entitled to the relief for

restitution of conjugal rights as prayed for? OPP

4. Relief.”

The learned Trial Court recorded findings adverse to the

appellant under all the issues.

I have heard Shri V.M.Gupta, learned counsel appearing

on behalf of the appellant and have carefully gone through the file.

None entered appearance on behalf of the respondent to

assist this Court.

As already noticed, the appellant did not at all indicate the

circumstances under which the respondent had withdrawn from his

conjugal company. All that he averred in the context is that the

respondent left his conjugal company on 30/31.8.1994. The

respondent does not dispute the timing, though her version about the

circumstances under which she had to leave the matrimonial house

is entirely different. Thus, it is common ground that the parties

cohabited at Patiala till the night intervening 30/31.8.1994.
F.A.O. No. 57-M of 2001 -5-

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By the very nature of things, there cannot be possibly any

documentary evidence about the goings-on in side the matrimonial

house. Those living in the vicinity would either be silent spectators or

just not interested in coming to the aid of the distraught female, for

fear of annoying a life long neighbourer. The evidence adduced by

the parties, in such a case, has to be appreciated in the light of the

inbuilt limitations in the context.

The respondent proved on record two letters Ex. R/1 and

Ex. R/2 which she had addressed to her brother. In the course

thereof, she had informed him that she was not being treated well by

the appellant and members of his natal family and that they used to

deprive her off the cash amount and she would hardly have funds

adequate enough to have even a cup of tea. There is nothing

unnatural about the respondent having been able to address those

letters to her brother because she is an educated lady and she was

in job at a bank from where she could intimate her predicament to

her brother by post.

The respondent, then, alleged that the appellant wants to

get rid of her and that, in order to achieve that object, the named

brother of the appellant threw her off his speeding scooter and fled

the spot. The factum of scooter episode is not contested on behalf of

the appellant. In his deposition at the trial, he stated that the scooter

had been hit by an another scooter driven by a military man. It is

also in his testimony that no report against that military man was

lodged. It is further in his testimony that his brother also sustained a
F.A.O. No. 57-M of 2001 -6-

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large number of injuries in that accident. If that were so, there is no

reason why the appellant would not have lodged a report with the

police. His statement that the above episode was not notified to the

police does not inspire confidence. Further, the statement by the

appellant that his brother had sustained a large number of injuries is

also not proved on record. The aforementioned named brother of the

appellant was not examined at the trial nor did the appellant examine

Doctor who had treated his named the brother in respect of those

injuries.

The tenor of averments in the petition would like to give

out as if the appellant is an innocent wronged partner in the alliance

and the respondent-wife had left the matrimonial house

unannounced. The clue to that controversy is to be found from the

testimony of none else or other than the appellant himself. He

testified at the trial that he wanted the respondent to sell off the

house at Bathinda in order to enable him to raise a housing loan

from his employer. He made a specific averment that he could not

have raised a loan till the house at Bathinda was sold off. He

cemented that averment of his by reiterating, in a latter part of his

cross-examination, that he would be willing to have the respondent

restored to the matrimonial house after she would sell off the house

at Bathinda and come over to stay at Patiala. The inescapable

inference deducible in the circumstances of the case is that the

appellant wants the respondent to sell off her house at Bathinda in

order to enable him to raise a housing loan (for construction of a
F.A.O. No. 57-M of 2001 -7-

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house at Patiala). The material obtaining on the file is also a clear

pointer to the effect that the offer made by the appellant to agree to

the restitution of the respondent to the matrimonial house is

conditional. He wants her restitution only on the condition that she

would sell of her house at Bathinda and would come over to the

matrimonial house at Patiala.

In the presently developed society wherein it is a usual

phenomenon to find both the spouses in the employment, it would

be illogical for a spouse to insist upon the other to sell off her

property just in order to enable him to raise a housing loan. If things

can be sorted out in an amicable way, the couple may do anything.

The insistence, however, of the appellant-husband in the context

cannot be upheld.

The following facts are evident from the above

discussion:-

The parties to the cause have grown up children. Their

marriage interse was soleminsed on 5.3.1988 and they are residing

separately since 30/31.8.1994. The respondent-wife has been able

to prove the reasons for the want of trust in the appellant-husband.

In that context, it may be noticed that the respondent-wife has been

able to prove that an attempt to do away with her was made by a

named brother of the appellant-husband, by throwing her off a

speeding scooter, which he himself was driving and, instead of

getting her medical help, opted to fled the spot. In that view of

things, the appellant-husband cannot validly filed a plea for restitution
F.A.O. No. 57-M of 2001 -8-

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of conjugal rights as he had, by the proven facts, ceased to enjoy the

confidence of the respondent-wife.

In the circumstances of the case, the learned Trial Court

correctly recorded a finding that the respondent-wife had reasonable

excuse to refrain from joining the conjugal company of the appellant.

The appeal is held to be denuded of merit and is ordered

to be dismissed.

May 07, 2009                                 (S.D.Anand)
Pka                                               Judge