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Smt. Sushila Bai Vs. Prem Narayan Rai - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil First Appeal No. 28 of 1980
Judge
Reported inAIR1986MP225; 1986MPLJ114
ActsHindu Marriage Act, 1955 - Sections 9
AppellantSmt. Sushila Bai
RespondentPrem Narayan Rai
DispositionAppeal allowed
Excerpt:
.....respondent, is more reliable. 8. section 9 of the act is reproduced hereinbelow :9. restitution of conjugal rights -when either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly. she also proves that the behaviour of her husband towards her was not good. 3) is reliable and there was no cause or reason for the trial court to hold that the wife-appellant herself has withdrawn from the matrimonial association of her husband. the..........as the act) in the court of the district judge, gwalior and prayed for a decree for restitution of conjugal rights. the facts disclosed in this application are that she was married to the respondent on 28th june, 1972 and after marriage, both lived together. during this period, she was mistreated and assaulted by the respondent and ultimately, on 1st may, 1977, the respondent abandoned her in her parental home with the instructions not to send her to him, unless called for. several letters were sent by her parents to respondent, requesting to take the appellant back, but the requests remained unanswered.3. respondent, in his reply, admitted the factum of marriage, but repudiated the allegations of cruelty. he also denied that he has abandoned the wife and left her in the residence of his.....
Judgment:

Rampal Singh, J.

1. This appeal has been preferred by the aggrieved wife under Section 28 of the Hindu Marriage Act, against the order of the District Judge, Gwalior, dated 29-2-1980.

2. On 9-10-1978, wife-appellant filed anapplication under Section 9 of the Hindu Marriage Act thereinafter referred to as the Act) in the Court of the District Judge, Gwalior and prayed for a decree for restitution of conjugal rights. The facts disclosed in this application are that she was married to the respondent on 28th June, 1972 and after marriage, both lived together. During this period, she was mistreated and assaulted by the respondent and ultimately, on 1st May, 1977, the respondent abandoned her in her parental home with the instructions not to send her to him, unless called for. Several letters were sent by her parents to respondent, requesting to take the appellant back, but the requests remained unanswered.

3. Respondent, in his reply, admitted the factum of marriage, but repudiated the allegations of cruelty. He also denied that he has abandoned the wife and left her in the residence of his in-laws. Respondent pleaded desertion on the part of his wife.

4. The sole issue, whether the respondent has withdrawn from the association of his wife? was answered by the trial Court against the wife-appellant.

5. During the trial, the wife examined herself, her father Narayan Prasad, Prem Narayan and Shyam Sunder. The husband examined himself and one Satya Prakash Sharma, his Guruji and mentor.

6. On perusal of the entire evidence on record, it is evident that the difference between the wife and the husband is only on one issue and that is the wife wants to live with her husband at Bhopal, where he is in Government service, while the husband wants to keep his wife only at Bina, where his father, mother and sisters reside. The appellant-wife like any other wife, is desirous of living in the constant company of her husband, seeking the nuptial-bed and conjugal bliss. But, the husband has expressed his inability to keep his wife with him at Bhopal on the ground of lack of space and funds.

7. The trial Court has rejected the evidence adduced by the wife-appellant solely on the ground that there is no corroboration of the statement of Savitribai (P.W. 4) and Narayan Prasad (P.W. 2) and Prem Narayan (P.W. 3) are her close relations and hence, they are not reliable. The trial Court further held that SatyaPrakash (D.W. 2), the Guru and mentor of the respondent, is more reliable. The trial Court reached the conclusion that the husband cannot be said to have deserted the appellant-wife.

8. Section 9 of the Act is reproduced hereinbelow :

'9. Restitution of conjugal rights -- When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the District Court, for restitution of conjugal rights and the Court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.

Explanation.-- Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.'

In order to sustain a petition for restitution of conjugal rights, it is necessary to establish that the respondent has withdrawn from the society of the petitioner. The society means conjugal society. Thus, the onus is on the petitioner who can succeed only on the strength of his own case and not on the weakness of the defence set up. The Explanation added to Section 9 by the amending Act of 1976, has merely provided for a rule of evidence by laying down the burden of proof in regard to a question whether there has been a reasonable excuse for withdrawal from the society of the petitioning spouse on the party pleading excuse. This burden of proof is very light since the spouses are always supposed to live together and if he or she lives separately, it is for that person to prove the conditions which have necessitated such a course to be taken Thereafter, that burden would shift to the other party to show that he or she has withdrawn from the society of the other for a reasonable excuse.

9. In the light of above discussion, I propose to examine the evidence of the parties. Sushila Bai (P.W. 1) proves that her husband left her and brought her to live in her paternal house. She also proves that the behaviour of her husband towards her was not good.

According to her the respondent never turned up to take her back to matrimonial home, and when approached by herself and her father at Bhopal, he refused to take her back. She, in cross-examination, explains that she and her father undertook this journey at Bhopal in July, 1978. These facts are corroborated by her patriarch Narayan Prasad (P.W. 2) and Prem Narayan (P.W. 3). The facts stated by these witnesses are, in my opinion, sufficiently corroborated by Notice sent by an advocate of the wife on 24-8-1978 to the respondent (Ex. P/1). It is pertinent to note that this notice was not replied by the respondent as he has not produced any copy of his reply to Ex. P/1. Furthermore, the facts stated on oath by these witnesses stand corroborated by Ex. C1, dated 2-3-1978, a letter sent by Narayan Prasad (P.W. 2) by Registered A.d. Acknowledgments of Ex. P/1 and Ex. C1 are Ex. P/2 and Ex. P/3. What further corroboration of the facts stated by P.W. 1, P.W. 2 and P.W. 3 was needed by the trial Court is not clear from the impugned order. It is clear that the facts stated by Savitri Devi (P.W. 4) in the Court stand sufficiently corroborated by Narayan Prasad (P.W. 2) and Prem Narayan (P.W. 3) and cumulative corroboration is apparent from Ex. P/1 and Ex. C1. It is settled principle of law that the evidence of relative witnesses cannot be thrown out merely on the ground of relationship, but it should only be minutely examined. On close scrutiny, I am of the view that the testimony of Narayan Prasad (P, W. 2) and Prem Narayan (P.W. 3) is reliable and there was no cause or reason for the trial Court to hold that the wife-appellant herself has withdrawn from the matrimonial association of her husband.

10. From the evidence of the respondent, it is clear that there is no ill-will in his heart for his spouse and he is still prepared to take her back. It is a separate issue, whether he keeps her with him at Bhopal or at Bina. Neither the husband had attacked his wife's chastity, nor the wife has made any allegation of 'the other woman' or second marriage in the life of her husband and if the trial Court had granted the relief as prayed for by the wife, I am sure, the differences between the two would have been wiped out by now. The deprivation of either spouse of the conjugal company of the other is as much common in the one sex as in the other and is due frequently to trivial as well asgrave reasons. In the interest of the institution of marriage on which depends the stability of any civilised society, some safeguards should be provided against too hasty separations and remedies made available for rapprochement and reconciliation. Had the trial Court appreciated the stand of the respondent to take back his wife, the rest would have been thrashed out when both met together under the umbrella of the decree for the restitution of conjugal rights. A Hindu wife, on marriage, not only passes to the family of husband, but also adopts his 'gotra', The relationship between the spouses imposed a duty on the husband to protect his wife, to give her a home, to provide her with comforts and necessities of life. It enjoined on wife the duty of attendance, obedience to husband and to live with him wherever he chooses to reside.

11. In this case, there are no problems between the spouses and even if there are any, they have not surfaced either in their pleadings or in the evidence of the parties. It is apparent that once the wife was out of the family of the respondent, he did not care to approach his wife for reconciliation. It is the respondent who failed to take effective steps towards the iresumption of matrimonial ties. He failed to respond to the letters from his wife and also failed to ask her to come back. This circumstance and the strange conduct of the respondent in keeping ice-cool attitude towards the wife persuades me to conclude that it is he who was responsible for this unfortunate situation. He enjoys the patronage of his Guruji, Satya Prakash (D.W. 2) and also enjoys the rent-free accommodation in the former's (latter's?) house. In a rent-free accommodation, the respondent could easily have provided shelter to his wife and also the food and clothing. Long silence, unresponsive attitude and cold indifferend towards his wife, on the part of the respondent is sufficient to convince me that it is he who has abandoned his wife without any excuse.

12. There is no ground as to why, without any rhyme or reason, the wife-appellant should leave her husband and be left in the lurch in this world by becoming a parasite to her paternal resources. Appellant has shown that she is sincere in the sense that she has a bona fide desire to resume matrimonial cohabitationand to render the rights and duties of such cohabitation. This is not a case where the wife is educated and liberated. 'Women's LIB' seems to be far beyond her understanding. She desires nothing but the nearness of her husband and his warm bed. If she can attain this goal, why the Court should not help her by a decree of conjugal rights?

13. The upshot of the above discussion is that this appeal is allowed and the impugned order is set aside. Let a decree of restitution of conjugal rights under Section 9 of the Act be passed in favour of the wife/appellant with costs throughout. Respondent shall also pay an amount of Rs. 250/- to the appellant as costs of this appeal.


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