JUDGMENT
Vasanti A. Naik, J.
1. Heard the learned Counsel for the parties.
Since the second appeal arises out of a matrimonial matter, the parties were put to notice that the matter would be heard finally at the stage of admission.
2. The present appeal has been preferred by the appellant husband against the respondent wife challenging the judgment and decree passed by the Additional District Judge, Achalpur in Regular Civil Appeal No. 6672001 granting a decree for restitution of conjugal rights in favour of the respondent wife.
3. Few facts giving rise to the second appeal and to the controversy involved therein are stated thus-
The appellant was married to the respondent on 1-5-1997 according to Hindu rites and customs. The respondent joined the company of the appellant husband and went to the matrimonial house to reside with the appellant. It is the case of the respondent that the appellant treated her well for a few days during the lifetime of her father-in-law. After the death of her father-in-law, the appellant started ill-treating the respondent on the ground that he dislikes her. It is, then, pleaded by the respondent that the appellant’s family members always used to ask her to bring money from her parents and on her failure to bring money, the appellant used to beat her and also deprive her of food. It was further pleaded by the respondent that on 13-11-1998 when she was admitted to the hospital of one Dr. Bhattad for delivery of her child, the appellant and his relatives took all her gold ornaments. On her inquiring about the ornaments, the family members of the appellant assaulted her. It was also stated in the petition that she had lodged reports in the police station against the appellant and his family members. She, however, pleaded that though she was dragged by the appellant to her parental home, she was ready and willing to reunite with the appellant, and therefore, sought a decree for restitution of conjugal rights.
4. The appellant contested the petition and denied all the adverse allegations levelled against him. He flatly denied that he used to ill-treat the respondent at the instance of his family members after the death of his father. He further denied that her gold ornaments were taken away after she was admitted to the hospital of Dr. Bhattad. It was submitted on behalf of the appellant that the respondent had completed her post-graduation in Arts and since he had secured only a Bachelor’s degree in Arts, the respondent always used to seek a divorce from the appellant. It was also pleaded that on 11-10-1998, the respondent and her brother Kiransingh had administered poison to the appellant because of which he was admitted to the hospital. It was then pleaded that earlier he had tried his level best for a reunion but, it was not possible. The respondent had filed a civil suit against the petitioner and his family members for partition with a view to pressurise him. It was also pleaded that the respondent was living separately and had left the matrimonial home without any excuse or reasonable cause, and therefore, the petition for restitution of conjugal rights was liable to be dismissed.
5. On the aforesaid pleadings of the parties, the trial Court framed the issues and after appreciating the evidence tendered by the parties on record, held that the respondent had failed to prove that the appellant had withdrawn from her society without reasonable cause or excuse. The trial Court held that the respondent had failed to prove that she was entitled to a decree for restitution of conjugal rights. The judgment passed by the trial Court on 29-9-2001 was challenged by the respondent in a first appeal. The first Appellate Court had, however, by the judgment dated 31-3-2005 allowed the appeal filed by the respondent wife and decreed her petition for restitution of conjugal rights. The husband has challenged the judgment and decree passed by the first Appellate Court on 31-3-2005 as the first Appellate Court had granted a decree in favour of the respondent wife merely by considering an admission of the appellant in his cross-examination that he was ready to take back his wife and cohabit with her.
6. Mr. V.M. Deshpande, the learned Counsel for the appellant, submitted that the first Appellate Court committed a serious error in granting a decree for restitution of conjugal rights by merely relying on an inadvertent stray admission of the appellant that he was ready to cohabit with the respondent without considering the other evidence on record which was rightly considered by the trial Court to hold that the respondent had not made out a case for grant of decree for restitution of conjugal rights. The counsel for the appellant submitted that the trial Court had observed that the respondent and her brother had administered poison to the appellant and the respondent had also lodged numerous proceedings against the appellant with a view to harass him. The counsel for the appellant then submitted that the trial Court had rightly discarded the evidence of respondent’s uncle and had also considered various admissions of the respondent in her cross-examination which shattered her case and disentitled her to seek a relief of restitution of conjugal rights. The counsel for the appellant submitted that the first Appellate Court did not consider the evidence which was rightly appreciated by the trial Court and the judgment of the first Appellate Court is liable to be set aside.
7. Mr. Bapat, the learned Counsel for the respondent, on the other hand, supported the judgment passed by the first Appellate Court. He submitted that the first Appellate Court was justified in granting a decree for restitution of conjugal rights in view of the admission of the appellant that he was ready and willing to cohabit with the respondent. The counsel for the respondent submitted that the Appellate Court rightly held that the trial Court ought to have passed a decree for restitution of conjugal rights in favour of the respondent in view of the admission of the appellant to the aforesaid effect. It was submitted that it was not necessary for the first Appellate Court to consider any other evidence in view of the admission of the appellant.
8. On the aforesaid pleadings of the parties, the following substantial questions of law arise for consideration in this second appeal.
1) Whether the decree for restitution of conjugal rights could be passed merely on an inadvertent stray admission by the opposite party showing the willingness to cohabit with the spouse, specially when the evidence on record unequivocally points out to the only conclusion that the party seeking the restitution of conjugal rights (\was not entitled to seek a decree for the same?
9. To answer the substantial question of law, it is necessary to consider the evidence on record. It is necessary to note that respondent had launched various civil and criminal proceedings against the appellant. The respondent had launched as many as seven cases against the appellant. The respondent had lodged a report against the appellant and his family members for an offence punishable under Section 498-A of the Indian Penal Code and a criminal prosecution was pending against the appellant. The respondent had further admitted in her evidence that she had filed an application under Section 125 of the Code of Criminal Procedure within a period of 7 to 8 months of her departure from her matrimonial home. She had also admitted in her cross-examination that she had filed a suit for partition and separate possession of the property against the appellant and his family members. She then admitted that she had also filed a complaint against her husband for theft and had also obtained the custody of the presents and articles which she had received in the marriage through the Court. It was admitted by the respondent that she had not issued any notice to the appellant asking him to take her back.
10. The trial Court had recorded in the judgment that the appellant husband had successfully proved that the respondent and her brother Kiransingh had administered poison to the appellant and the brother of the appellant had lodged a report against the respondent and her brother. The trial Court had rightly considered the copy of the station diary showing the report at Exh.41. The trial Court then appreciated that it was not only the respondent who had instituted several proceedings against the appellant but the appellant had also launched criminal proceedings against the two sisters and the maternal uncle of the respondent under Sections 107 and 116(3) of the Code of Criminal Procedure. After considering all the aforesaid admissions and the material evidence, the trial Court was rightly of the view that the respondent-wife was not entitled to seek a decree for restitution of conjugal rights. The trial Court found that the respondent had taken away all her gifts and articles through the Court which clearly indicated the intention of the respondent to leave the appellant permanently and not to cohabit with him. The trial Court then relied on the judgment reported in 1963 Mh.L.J. 255 and 2000(2) Mh.L.J. 410 to hold that the confidence and faith between the husband and wife is the backbone of a healthy married life and in the facts and circumstances of the case, it was impossible for the appellant and the respondent to stay together. The trial Court held that the present case was one of the rare cases where it was the wife who had ill-treated and harassed the husband and subjected him to cruelty. The trial Court discarded the plea of the wife that she was ill-treated by the appellant husband for not bringing money from her parents. The Court also held that the respondent had miserably failed to prove her case that the appellant had withdrawn from her society without any reasonable cause or excuse. Considering the fact that the respondent and her brother had administered poison to the appellant and he was required to be admitted in the hospital at Daryapur, the trial Court was of a clear view that the wife was not entitled for a decree for restitution of conjugal rights.
11. The trial Court had lightly appreciated the material evidence on record to hold that the wife was disentitled to seek a decree for restitution of conjugal rights. The first Appellate Court, however, without considering or even referring to the material evidence on record, merely relied on a stray admission of the appellant to hold that the trial Court ought to have granted a decree for restitution of conjugal rights in favour of the respondent. The first Appellate Court gave undue weightage to the solitary admission, which clearly appears to be inadvertent, to grant a decree for restitution of conjugal rights. The number of cases filed by the respondent against the appellant clearly show that the respondent did not have any confidence or trust in her husband and she was not desirous of cohabiting with him. Where a party is desirous of cohabiting with the spouse, it is not expected of that party to institute proceedings for partition and separate possession of the property, proceedings for an offence punishable under Section 406 of the Indian Penal Code and take steps to initiate proceedings for an offence punishable under Section 498-A of the Indian Penal Code. It is not expected of a wife to launch all these proceedings against her husband and still desire to stay with him. Moreover, the respondent-wife has levelled several allegations against her husband about ill-treatment, demand for money from her parents and other several serious allegations are also made against him. In such circumstances, it is not easy to digest that the respondent-wife was desirous of cohabiting with the appellant husband.
12. In the face of the proceedings filed by the wife against the husband for the offence punishable under Sections 406 and 498-A of the Indian Penal Code, it is apparent that a feeling of threat and uncertainty would always remain at the back of his mind. The first Appellate Court was, therefore, not justified, in the facts and circumstances of the case, in holding that the inadvertent solitary admission of the husband outweighed the entire evidence tendered by the husband and the wife, though it showed that the wife was not entitled to a decree for restitution of conjugal rights. I, therefore, answer the substantial question of law in the negative and in favour of the present appellant. The second appeal, therefore, succeeds and is allowed with no order as to costs.