Mb'A.N«:>.l16E».2QG5
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are 'l'Hb' HIGH coum' or §.ms - «V ..
w;(3.':'.§A{>.gs1§¢.ANé:)AM: . V:
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l_IDUPI* x _ % %
V' ' V V AH-'}:)LLAN'l'
{By 5:1: MAm_;sH _&.1xA_N"ss"Har1*1'v, ADV.)
4. z ..... .. W
V fi"'$Z§';5fK9§}&ND Pm
._ .AGE1} A_i3@'u'1' 44 YEARS
A V as/0;L££I.'is;'1'vta;N1. 1165.2OC35
fulfil his matrimonial obiigations and all his attempte to
get the responcient back have been went in
the circumstances he filed the
restitution of conjugal rights.
4. After the service of fi'e111_the the L'
respondent apmaretlx with
the petitioner. But marriage they
stayed at I}e:zf .§,.h1′;q1.V}$2?x;é’§if%11′;na.var, as there
was no The petitioner
of his mental disahiiitjr’.
He vsfas in April 1993 for mental
disabiii1:§F” ‘.1′,Vi\;i.§=x.,_!l:”:’ai»LV Hospital, Udupi where he was
V’ . fer eifihtfiaye as an in-patient. After discharge
‘ tablets. But only after marriage, the
came to know that he was mentally
AA disébied, despite that she er:>~eperateci with the
* pefitioner and three months after marriage, they set up
a house at Brahmavar Where the petitioner sta:rte<:1
hamesing her by abusing her in filthy language and
beating her and giving faiee complaints about her to her
mether. For about six mrmths she stayed toiera13'11g his
9/
:~o'A.me.1;:e5.2oo5
mentai and physical torture, but on coining to _i§now
that he was having an iflicit relationship with"
lady, she returned to her parents house
The petitioner did not "visit her aftef tie livery,
The petitioner not only had __ tezitfliiae'
the habit of consuming liquofanci not; any
love and affection tow"ax~tis " I'
5. Under i no alternative
but to resjitiev Tnefe is no chance of
their ii_*:ii3.g_ and wife. Hence, she
sougiiffoi’
o. in of his; case, the petitioner examined
it got marked Ex.P1 and P2 while the
herself as KW. 1.
“I. the basis of the above material the Family
named the following points tor its consideration:
i) Whether the petitioner proves that the
respondent has deserted Without any
rveaeonabie cause?
ii) Whether the respondent proves that
there has been reasonable cause to
/it
/.
ME:’A.NO.l1E35.2005
_ 6 …
withdraw from the society of the
petitioner? V ” 9
iii) Whether the petitioner is entitled
restitution of conjugal rights? I K
iv) ‘ What order?
The l:«”amily Court: answered”‘pointJ,’.Not,1 A’
affirmative and Point and
allowed the petition of eeslituflon of
conjugal rightsA;_and ieepoggeient to join the
petitioner ‘_Vo1_ie date of said
” * lhe said Judgntient and-
i.)ecree ttle~ has preferred this appeal.
‘llavefl the learned counsel for the
and learned counsel for the
lens band.
It” submitted on behalf of the appellant that the
l’ Court failed to appreciate that the
“Tespondent/husband was suffering from mental
ciisorder and that he had taken trmtzxxent as impatient
/’4/
Iv§J:’A.Nc>. 1165.2{i{35
.. 8 ..
mammoniai home. Hence he was constrained to file the
petition seeking restitution of conjugal rights,
been rightly snowed. He therefore, requests;”‘tiiis~ _
to dismiss the appeal. _ ~ —- ‘
11. Having regard to the abofie sub;11issief;”
point that arises for our considefatien is e;s_s’tov1%7Iic:ti’;e:’rV.V
the judment and decree of Lem! any V’
irxterferenee in this
12x ;;V§«pe_ _of this case are that the
parU’es’ w_eie maeied:””oeeTI”24V;3..r}.993. That after the birth of the
zrespondeef who is the appellant herein did not
A matrimerxial fold. That since the year
1994, tfieeéamies have not resided together and despite
iega; Iieizices issued to the respondent, she did not
to the company of her husband and hence, the
T ” “petition for restitution of conjugal rights was filed in the
year 1998. Though there was more than two years of
separation between the parties, the petitioner has not
0
jib
i’=’ih?~’3.No.3.3.£é5.Z:€)€§5
.. ..
sought for disseiutien of marriage by a decree of
divorce. but on the other hand, has for
restitution of conjugal rights. Under the
the intention of the petitioner is apparent _Ai_nesIi1i..1cii as 2
he is intereeted in continuing with .. ‘Vt. e
13. Under Section 9 of __ ‘
either of the spouees ,reaeoI1abie excuse
withdraws from the then a petition
«could be restitution
of conjugnai on being satisfied with
the of made in such petition and
that thereiés not C why the appiimxion should
pass a decree of restitution of
‘ accordingly. The explanation pertains to
proving reasonable excuee for Withdrawal
from Veoeiety of the other spouse or the party who
A 5.’ hee«A_withdrawn fmm the society. The basis for enioreing
” restitution of conjugal rights is the right of a spouse to
consortium of the other spouse and where the other
spouse had abandoned or Witiildrawn from the society of
the aggrieved spouse without reasonable excuse or just
3:4
5,»
Mi:’A.No.116E§.;EiO(J5
— 10 –
cause, ‘ the court should. grant a decree of restitution.
This motion must however be read with Secti91i._ 233; of
the Act which imposes a duty on the _
into and pass a decree for restitution of V.
after satisfying itself about hes
approached the court having a ;
resume matrimoniai’ Iender his
duties of ‘who resist the
petition must: veoweves’ if: ” ‘Jthere was a
withdrawal from
the that the petitioner by
taking ‘ own wrong or any disability
is emtitleci .1:et’I1ev’i’e1ief under Section 9. A husband
ims to require his wife to live with him
choose to I’6Sid6 and unless there are
speeiai—Veirxiiamsrsnees, the court carmet absolve the wife-
‘ fi”L’;iE1§} discharging her corresponding duty. The injtiai
ef proving that the respondent has witheut:
Teasenabie excuse withdrawn from the seciety of the
petitioner obviously rests can the petitioner, but the
burden ef proving reasonable excuse is on the
/ii”/5
Exa-
Mr’i~:.N0.’i’i65.2{}05
.. ..
respondent. The reasons for the one to
withdraw from the other spouse must be
weighty.
14. in the case of Revanne …y’/3:’ ”
reported in AJR we? Mysore 165′, ii; h}as
reasonable excuse contemVp1ei:ec£ in. be” ‘
one which would afierd t11e”‘_gi§e1ii’w_l eit’he’£~ flak’ judiciai
separation or for nufliifjv of pr fbr divorce.
Keeping the the evidence on
record Id
£5. as WV. 1. He has stated
sfizer they resided at Brahmavar in a
. aeeeeamodafion 1?)!’ about six to seven months.
the respondent ieit tbr her parental
heeee “vfe1.” Seemanttm ceremony and on 24.3.1994 she
V’ V. gave to a maie ehiici. ‘i’he3neafter when he visited
uAte request her to return, she refused. Hence he got
“a legal notice issued which is; marked as h2x.PI and
Ex.i~’2 is the aclmowiecigment of the receipt of the said
legai notice. He is willing to reside with the 1’f3’$p(}¥1€lt3i1t
ié
f~€i:’A.l’vIr:>. 1l6S.2€}{)5
.. 32 ..
as her husband and he has discharged his obiigations
as a husband. According to him, after marriage
never resided in his in—la.w’$ house and
sound mental health. in 1994 he to es :
hospital as his brotherminmlavif hwélin fi»li’it; .: iii’:
respect of which he had else givezfléz L.
He has no bad habits and has “cavtE_1sed any
cruelty’ to his wife.’ “é-iiie 5.w8.=:;_=s at the temple
premises and in the evefitfof :v,:etuI11, he would
take up 3,. lie Vfifiéfefsre, sought fer
16. in V_er0ss~exaVޤ:ix1ation he has stated that in
.’ V’ g}a:fi1C’19;;e”– ” 3,? 2900 hefiééis residing at the temple and not in
hisu V address at the native place. Before
Iharriage he was Working as a. Pigmy agent fer
Bank, but because of the complairzt made
{he respondent’s i’a2:1:niiy that he had stolen things
‘V the house, the be nk did not permit him to function
as 3 Pigny agent. 111 April 1994 he was afimitteci to
‘i’.M.A.Pai Hospital for three days, but not on account of
Mi*’A.i\iondent
and cause harassment Stated that he
had given a Because he was
beaten V?étl§1’véndorsement that he
must Civil Court. From
the refit” “fispondent took away all the
aI’tic:ics._ jointly. He had got
“issfiad ‘4’€wo”” zjgoticeslw when he went to see his sen, he
I tlfiemafter he did not visit his in–laws’
house. did not return fiom her parental home:
}z:ftcj_1′ ;birth of the child. But that he i3 ready to look
‘alftcrtler if she ratmwas to the matrimonial heme.
17. As opposed to the avidence 9:” Fwd, RW3 has
stated that after marriage fur $a-ven days they lived in
the pet.it:iner’s native place. ‘i’hereaft:e:r they lived at
2%
£*’1b’;’–&.1’=€<:2.'l,1%.65.2{i(}S
.. ..
Avianipal for a month and then they lived for another
month at her parents house, then KW.1
advance and got a rented premises and iived.’
months. At that time the petitioner .,
would not allow her to go to
drink and threaten her wit’n_a But ‘os§;d%”—as _
pay the rents of the the
necessary things fo1*-.._.£E1e ‘But the petitioner
threw her out.v_aiong.~w:ith ‘he3.E.’_’ ‘When she was
pregnatxt. . ‘ feel iike residing
with she went away to her
‘£9194 she gave birth to her son,
but; eot come to see him. He did not
:in>’£f;eneve§; he was requested to attend the re»
He gave complaint against her.
After her she came to know the petitioner was
Vt no: sound. in the last week of April 1993, she
;§V1eci got him admitted at ‘i’.M.A.Pai Hospital for ten days.
V’ Brien before marriage he was suffering from mental
illness, but without diseiosing the same, the petitioner
got married to her. She is not wiiiing to reside with him.
2
Péh’A.N0. 11eS.;.’«;{so5
.. ..
it is not true that the petitioner would look after her and
as weii as her child. He does not even have a hojuee’
he does not have the capacity to look _
child.
18. in her cross-examination ehe :_n.ae
marriage, they lived toga-!;_k1erV” ‘-for Vflaifeej >
thereafter she went to he:_:i-;3:aI*e_r1ts.’ ‘end the
petitioner went to has denied that
though the pe€itione:””iec§’uested_ times, to join
him, ifeeide The petitioner used to
beat iier ill, but she has not given
any to, ‘police about his harassment. He
V. _ wai§j§d;»_A.eiways Aiéemmld money from her and she would
that he had no proper Work. tie did not
ieek net. Their marriage was an arranged
marriage, but the petitioner did not disclose about his
illness to her and her family members. She has
frowever admitted that she has documents to Show that
he is mentaily iii. In the year 1993 Manipal Hespitai
had issued said document. She has also denied that
she has not flied any petition seeking divorce anti she
Hl:1A.l’~$o.11t35.;ZOU5
..’_}_E3_
has also denied that she is earning salary and.__the
petitioner has no job and thereibre, she is V.
in joining her husband.
19. From the material on»—it”é.s evi€:i€:!1:t”tl’1atl the
marriage between the an
and that within a yea.tf.oi’ had a
male child aJ:1d__the is that the
respondent4_Vci.:iel;*lot fold after
the was no justifiable
to otithdraw herself from the
According to the mtitzioner,
befogife eras working as a pigmy agent at
But on account of the complaints
made VV’o§_~v_v.the'”i§eeponclent’s family that he had stolen
V ~V the house, the bank did not permit him to
” ., iiioetioia as a pigny agent. He also admitted that Zoe
lwaehixa hospital in the month of April 1€~)€:%=’?;», but not on
‘V account of any mental illllfi’-‘S’.”:.». He has stated that he is
ready to look after the respondent and the child,
p1’o*-eczied she returns to the matrimonial fold. According
M1t’A.N. 11€»5.2{}€}5
_’i’?….
to the petidoner, there is no justifiable reason for her to
withdraw herself from the company of the
However, the ease of the respondent ”
petitioner used to harass her axjdwthat’ he to
drinking habit and that she’
matrimonial home during he ‘V
did not visit her ai’ter.the_ ‘V’I’I1.i:a’.t he was
admitted to TMA Pa; and he
has not respondent and
because to beat her and
work and did not look
after hex’, a. salary, whereas the
petitgiotoer has no’ ‘j1ob’V’a11.d for the aforesaid reasons, she
Viixstnot. in joining her husband.
On.”ap§reeiafion of evidence on record, it is
§*..,app«aren1:; that the parties had cordial conjugal
V”:V’.re£ettionship inasmuch as the respondent five birth to a
K _»v_£(iale eniid Within a year of marriage. That the
petitioner was working as a pigmjs; agent in Corporation
I:-tank. But subsequentiy, he lost the said job. it is also
apparent that the respondent is working and has an
,5
Mis’A.N0. 1;E.t35.2OC}5
_.’i8…
income at the time of giving evidence, but the petitioner
has no income, and that they are residing
einoe the year 1994 after the birth of viffhe
that the respondent has that
used to abuse her and and
drinking cannot in our
cause for the axédff the
company of the fact that the
parties haw”; one year and
during V’ wrespondent conceived
and 1 –1:taede child. Under the
the allegations made by the
resnondent ‘é;t¢.V_VVe’gai§ist the petitioner with regard to
and the petitioner being addicted to
be’ beiieved. As far as the petitioner
a mental disorder is concerned, though
K ‘V V’ “Lh.<a._.AreVe';)ondeI1t has contended that he was admitted to
Pei Hospital for mentai iliness and that he was
Ad under meamtion, but in the face of denial of the said
fact by the petitzioner, no corroborative or independent
documentary evidence has been produced by the
M}:'A.No.1165.2fJ{}5
_ 19 _
respondent in support of the said fact. Under the
circumstances, we are uneble to hold that the
respondent has a justifiable reason to \aarit.t1c£1'_:3e.s_2}:"«:fb_hI't-;*.1vn
company of the petitioner on account of_.'4".i=1_is4A =
21. with regard to the assaultV’»saiti”toe’ Ijmaefe
by the respondent agamst the petjthionery: no L’
corroborative evidence to _»and’r1ei.t£A’1er3has the
respondent stated T-she against the
peti’t;iooer~ ‘- V’ fl;>oiioe’£station. On the other
hand, that he had compiained
against the-«éioefoie Brahmavar Police Station
V, “@I::~admitted by respondent. According
to Tthe”–mti.tio’r1er, he was constrained to give such a
the respondent because, she had
“v..,assan’iteti the sister of the petitioner when the
Vtgeeno’-ndent was staying away fiom the company of the
K ‘petitioner, we find that there was no justifiable reason
for the rwpondent to commit assault. )3
ivf1f’A.N. ‘i’_if:i~Er.L§3GG5
the aspect regarding mental disorder if any, of___ the
petitioner, would also have been considesoeti
therefore, we find that the so calied behafiozsi
of the petitioner could have «th_e’._ for–f[ti’ic
respondent to withdraw :
petitioner. On the ot!1er”‘vs«,i:iand, V. We the’
respondent has of the
petitioner because ~iiisie:oridng and is
esrrning andf no job and no
income. in our View be
jt1sti1″iob1e.”’ – 1 Inn
24. in feet; who is the husband of the
V. is in straits and in financial ciiificuity
‘of1″ jobless, then it is the duty of the
§i;eife’iwI1o’ tirorking and earning an income to provide
for ‘gpetitioner, rather than withdrawing from his
“ii 3: and making faise allefitions against the
K gjetitioner so as to justify her Withdrawal. in View of the
aforesaid reasons and taicing into consideration the
reasons assigned by the Family (Jourt, we dismiss the
/3
9;//.’
M§’fia.No.l165.2(J()5
appeal and uphold the direction given by the Famiijv
Conn» _W ;;a ;
KVN* -V1,