{"id":104765,"date":"2009-05-07T00:00:00","date_gmt":"2009-05-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/prem-chand-gupta-vs-nirmal-gupta-on-7-may-2009"},"modified":"2017-07-17T04:01:58","modified_gmt":"2017-07-16T22:31:58","slug":"prem-chand-gupta-vs-nirmal-gupta-on-7-may-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/prem-chand-gupta-vs-nirmal-gupta-on-7-may-2009","title":{"rendered":"Prem Chand Gupta vs Nirmal Gupta on 7 May, 2009"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Prem Chand Gupta vs Nirmal Gupta on 7 May, 2009<\/div>\n
F.A.O. No. 57-M of 2001                           -1-\n\n                                   ****\n\n\n      IN THE HIGH COURT OF PUNJAB AND HARYANA AT\n                      CHANDIGARH\n\n\n\n                      F.A.O. No. 57-M of 2001\n                      Date of decision: 7.05.2009\n\nPrem Chand Gupta                                  ...Appellant\n\n                              Versus\n\nNirmal Gupta                                      ...Respondent\n\n\nCORAM: HON'BLE MR. JUSTICE S.D.ANAND.\n\nPresent:   Mr. V.M.Gupta, Advocate for the appellant.\n\n           None for the respondent.\n\n                           *****\n\nS.D.ANAND, J.\n<\/pre>\n
           The appellant-husband is in appeal against rejection of<\/p>\n
his plea under Section 9 of the Hindu Marriage Act (hereinafter<\/p>\n
referred to as the “the Act”) by the learned Trial Court, vide order<\/p>\n
dated 2.5.2000.\n<\/p>\n
           The marriage between the parties was soleminsed on<\/p>\n
5.3.1988. Two issues (a daughter and a son) were born out of their<\/p>\n
union on 8.12.1988 and 21.10.1991 respectively. Both were in bank<\/p>\n
employment at the time of their marriage. The appellant was posted<\/p>\n
at Patiala; while the respondent was posted at Bathinda. Sometime<\/p>\n
thereafter, the respondent was transferred to Samana, District<\/p>\n
Patiala. During her tenure over there, she used to commute daily<\/p>\n
from Patiala. On 30\/31.8.1994, the respondent withdrew “from the
\n F.A.O. No. 57-M of 2001                             -2-<\/span><\/p>\n
                                   ****<\/p>\n
society of the petitioner”.    The appellant is “ready    to keep the<\/p>\n
respondent with him at Patiala, the matrimonial house of the parties.”<\/p>\n
           Throughout the petition, the only averment made by the<\/p>\n
appellant-husband was that the respondent had withdrawn from his<\/p>\n
company without any reasonable cause and that he is ready to keep<\/p>\n
her at the matrimonial house at Patiala.\n<\/p>\n
           The respondent-wife also conceded that she stayed with<\/p>\n
the appellant till 30\/31.8.1994.     However, she made a different<\/p>\n
presentation about the circumstances        under which she       had<\/p>\n
withdrawn from the society of the appellant. The appellant and his<\/p>\n
relations were not satisfied with the adequacy of the dowry brought<\/p>\n
by her.   They used to always taunt her on that account.          The<\/p>\n
appellant would every month make her part with the entire salary.<\/p>\n
The mother and a named cousin         sister of the appellant used to<\/p>\n
humiliate the respondent on account of the birth of a female child to<\/p>\n
her and also on account of inadequacy of the gifts in the form of<\/p>\n
‘Chhuchak’. On 15.6.1990, a named younger brother of the appellant<\/p>\n
threw her off his scooter which was being driven at a fast speed. The<\/p>\n
intention was to kill her.    She was got hospitalised by her    three<\/p>\n
named colleagues; while the aforementioned brother of the appellant<\/p>\n
fled the spot. It were the parents of the respondent who got her<\/p>\n
treated at the hospital. After discharge from the hospital, she was<\/p>\n
taken to Bathinda. She resumed cohabitation shortly thereafter on<\/p>\n
the assurance of the appellant and his relations that she would be<\/p>\n
treated well. However, things did not really change for her. In the
\n F.A.O. No. 57-M of 2001                           -3-<\/span><\/p>\n
                                 ****<\/p>\n
year 1991, she was tortured physically and mentally when she was in<\/p>\n
a family way. She intimated her torture to her brother vide letters<\/p>\n
dated 17.5.1991 and 16.7.1991. On receipt thereof, she was fetched<\/p>\n
by the members of her natal family who brought to her natal house.<\/p>\n
On 15.1.1992, the appellant and his father went over to the natal<\/p>\n
house of the respondent and fetched her on a promise of good<\/p>\n
behaviour. However, on the night of 19.4.1992, she was belaboured<\/p>\n
by the appellant and a named brother of his even when she was in a<\/p>\n
family way. When she intimated it to her parents, her father, brother<\/p>\n
and uncle came over to the matrimonial house of the respondent.<\/p>\n
They too were humiliated and slapped. However, the relations of the<\/p>\n
respondent first took her to Bathinda and, on account of her<\/p>\n
condition, she was shifted to Chandigarh where she was diagonsed<\/p>\n
to be a case of missed abortion. Again, there was a panchayat on<\/p>\n
22.11,1992 and she resumed cohabitation at the matrimonial house<\/p>\n
at Patiala. Again, during the period of her stay over there, she was<\/p>\n
forced to part with her salary besides certain cash amount of<\/p>\n
Rs.15,000\/- and an FDR of Rs.3000\/-.\n<\/p>\n
           The mother-in-law of the respondent died a natural death<\/p>\n
on 11.10.1993. However, respondent was falsely accused of being<\/p>\n
accountable for her death.\n<\/p>\n
           On 29.8.1994, the death anniversary of her mother-in-law<\/p>\n
was held. There after, the respondent was beaten up but was saved<\/p>\n
by the neighbourer.    On the night intervening 30\/31.8.1994, the<\/p>\n
respondent over heard the appellant and his relations conspire her
\n F.A.O. No. 57-M of 2001                                 -4-<\/span><\/p>\n
                                       ****<\/p>\n
elimination.        She left the matrimonial house early in the morning,<\/p>\n
alongwith her two children, and took shelter in the house of a named<\/p>\n
colleague from where she was fetched by her brother.<\/p>\n
               The trial proceeded on the following issues:-<\/p>\n
               1)     Whether the respondent is living separately for<\/p>\n
                      sufficient and reasonable cause ?OPR<\/p>\n
               2)     Whether this Court has no jurisdiction to try the<\/p>\n
                      present suit? OPR<\/p>\n
               3)     Whether the petitioner is entitled to the relief for<\/p>\n
                      restitution of conjugal rights as prayed for? OPP<\/p>\n
               4.     Relief.”\n<\/p>\n
               The learned Trial Court recorded findings adverse to the<\/p>\n
appellant under all the issues.\n<\/p>\n
               I have heard Shri V.M.Gupta, learned counsel appearing<\/p>\n
on behalf of the appellant and have carefully gone through the file.<\/p>\n
               None entered appearance on behalf of the respondent to<\/p>\n
assist this Court.\n<\/p>\n
               As already noticed, the appellant did not at all indicate the<\/p>\n
circumstances under which the respondent had withdrawn from his<\/p>\n
conjugal company.          All that he averred in the context is that the<\/p>\n
respondent left his conjugal company on 30\/31.8.1994.                     The<\/p>\n
respondent does not dispute the timing, though her version about the<\/p>\n
circumstances under which she had to leave the matrimonial house<\/p>\n
is entirely different.      Thus, it is common ground that the parties<\/p>\n
cohabited at Patiala till the night intervening 30\/31.8.1994.
\n F.A.O. No. 57-M of 2001                              -5-<\/span><\/p>\n
                                      ****<\/p>\n
            By the very nature of things, there cannot be possibly any<\/p>\n
documentary evidence about the goings-on in side the matrimonial<\/p>\n
house. Those living in the vicinity would either be silent spectators or<\/p>\n
just not interested in coming to the aid of the distraught female, for<\/p>\n
fear of annoying a life long neighbourer. The evidence adduced by<\/p>\n
the parties, in such a case, has to be appreciated in the light of the<\/p>\n
inbuilt limitations in the context.\n<\/p>\n
            The respondent proved on record two letters Ex. R\/1 and<\/p>\n
Ex. R\/2 which she had addressed to her brother.            In the course<\/p>\n
thereof, she had informed him that she was not being treated well by<\/p>\n
the appellant and members of his natal family and that they used to<\/p>\n
deprive her off the cash amount and she would hardly have funds<\/p>\n
adequate enough to have even a cup of tea.            There is nothing<\/p>\n
unnatural about the respondent having been able to address those<\/p>\n
letters to her brother because she is an educated lady and she was<\/p>\n
in job at a bank from where she could intimate her predicament to<\/p>\n
her brother by post.\n<\/p>\n
            The respondent, then, alleged that the appellant wants to<\/p>\n
get rid of her and that, in order to achieve that object, the named<\/p>\n
brother of the appellant threw her off his speeding scooter and fled<\/p>\n
the spot. The factum of scooter episode is not contested on behalf of<\/p>\n
the appellant. In his deposition at the trial, he stated that the scooter<\/p>\n
had been hit by an another scooter driven by a military man. It is<\/p>\n
also in his testimony that no report against that military man was<\/p>\n
lodged. It is further in his testimony that his brother also sustained a
\n F.A.O. No. 57-M of 2001                             -6-<\/span><\/p>\n
                                   ****<\/p>\n
large number of injuries in that accident. If that were so, there is no<\/p>\n
reason why the appellant would not have lodged a report with the<\/p>\n
police. His statement that the above episode was not notified to the<\/p>\n
police does not inspire confidence. Further, the statement by the<\/p>\n
appellant that his brother had sustained a large number of injuries is<\/p>\n
also not proved on record. The aforementioned named brother of the<\/p>\n
appellant was not examined at the trial nor did the appellant examine<\/p>\n
Doctor who had treated his named the brother in respect of those<\/p>\n
injuries.\n<\/p>\n
             The tenor of averments in the petition would like to give<\/p>\n
out as if the appellant is an innocent wronged partner in the alliance<\/p>\n
and         the respondent-wife had left the matrimonial house<\/p>\n
unannounced. The clue to that controversy is to be found from the<\/p>\n
testimony of none else or other than the appellant himself.        He<\/p>\n
testified at the trial that he wanted the respondent to sell off the<\/p>\n
house at Bathinda in order to enable him to raise a housing loan<\/p>\n
from his employer. He made a specific averment that he could not<\/p>\n
have raised a loan till the house at Bathinda was sold off.        He<\/p>\n
cemented that averment of his by reiterating, in a latter part of his<\/p>\n
cross-examination, that he would be willing to have the respondent<\/p>\n
restored to the matrimonial house after she would sell off the house<\/p>\n
at Bathinda and come over to stay at Patiala.        The inescapable<\/p>\n
inference deducible in the circumstances of the case is that the<\/p>\n
appellant wants the respondent to sell off her house at Bathinda in<\/p>\n
order to enable him to raise a housing loan (for construction of a
\n F.A.O. No. 57-M of 2001                                -7-<\/span><\/p>\n
                                      ****<\/p>\n
house at Patiala). The material obtaining on the file is also a clear<\/p>\n
pointer to the effect that the offer made by the appellant to agree to<\/p>\n
the restitution of the respondent to the matrimonial house is<\/p>\n
conditional. He wants her restitution only on the condition that she<\/p>\n
would sell of her house at Bathinda and would come over to the<\/p>\n
matrimonial house at Patiala.\n<\/p>\n
           In the presently developed society wherein it is a usual<\/p>\n
phenomenon to find both the spouses in the employment, it would<\/p>\n
be illogical for a spouse to insist upon the other to sell off her<\/p>\n
property just in order to enable him to raise a housing loan. If things<\/p>\n
can be sorted out in an amicable way, the couple may do anything.<\/p>\n
The insistence, however, of the appellant-husband in the context<\/p>\n
cannot be upheld.\n<\/p>\n
           The    following   facts    are   evident   from   the   above<\/p>\n
discussion:-\n<\/p>\n
           The parties to the cause have grown up children. Their<\/p>\n
marriage interse was soleminsed on 5.3.1988 and they are residing<\/p>\n
separately since 30\/31.8.1994. The respondent-wife has been able<\/p>\n
to prove the reasons for the want of trust in the appellant-husband.<\/p>\n
In that context, it may be noticed that the respondent-wife has been<\/p>\n
able to prove that an attempt to do away with her was made by a<\/p>\n
named brother of the appellant-husband, by throwing her off a<\/p>\n
speeding    scooter, which he himself was driving and, instead of<\/p>\n
getting her medical help, opted to fled the spot.        In that view of<\/p>\n
things, the appellant-husband cannot validly filed a plea for restitution
\n F.A.O. No. 57-M of 2001                            -8-<\/span><\/p>\n
                                  ****<\/p>\n
of conjugal rights as he had, by the proven facts, ceased to enjoy the<\/p>\n
confidence of the respondent-wife.\n<\/p>\n
           In the circumstances of the case, the learned Trial Court<\/p>\n
correctly recorded a finding that the respondent-wife had reasonable<\/p>\n
excuse to refrain from joining the conjugal company of the appellant.<\/p>\n
           The appeal is held to be denuded of merit and is ordered<\/p>\n
to be dismissed.\n<\/p>\n
May 07, 2009                                 (S.D.Anand)\nPka                                               Judge\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Prem Chand Gupta vs Nirmal Gupta on 7 May, 2009 F.A.O. No. 57-M of 2001 -1- **** 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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-104765","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nPrem Chand Gupta vs Nirmal Gupta on 7 May, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/prem-chand-gupta-vs-nirmal-gupta-on-7-may-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Prem Chand Gupta vs Nirmal Gupta on 7 May, 2009 - 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