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.
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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
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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appellant-husband was that the respondent had withdrawn from his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withdrawn from the society of the appellant.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
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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
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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.
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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
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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
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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
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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