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Suresh Kanta Vs. Prem NaraIn Ahuja - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtDelhi High Court
Decided On
Case NumberFirst Appeal No. 8 of 1980
Judge
Reported in20(1981)DLT107
ActsHindu Marriage Act, 1958 - Sections 9
AppellantSuresh Kanta
RespondentPrem NaraIn Ahuja
Advocates: N.C. Sikri,; A.K. Sikri,; Madhu Sikri,;
Cases ReferredSmt.Shanti Devi v. BalbirSingh and
Excerpt:
.....the appellant has failed to place on record any material to show that ram kali was not doing house hold jobs in the house of the respondent. the evidence of other witnesses on behalf of the respondent also leads me to the conclusion that the appellant was treated well in the house of the respondent and that there was no excuse for her to leave the society of the respondent. (9) after giving my careful consideration to the facts of the case and evidence on record brought to my notice it appears that the apprehensions of the appellant are imaginary and she has failed to make out reasonable excuse for her withdrawal from the society of the respondent. moreover, for the reasons best known to her she has not joined the respondent. as already stated the onus to prove reasonable excuse to..........in central public works department at delhi on a transferable post. the respondent alleges that at time of marriage it was agreed that the appellant would leave her job and join him in case of his transfer out side delhi. after the solemnisation of the marriage parties lived at houses bearing municipal number 1439/1452, gali murli ban wali, bazar chitli qabar, delhi and they went to nanital for sometime. sometime in july 1968 the appellant started insisting upon the respondent to live separately from his parents. he did not agree, being the only son of his parents. the appellant thereafter started misbehaving with the respondent and his relations i.e. his parents and sisters. she started fighting on trifles without any justification. the respondent and his relations, it is said,.....
Judgment:

Sultan Singh, J.

(1) This appeal on behalf of the wife under section 28 of the Hindu Marriage Act, 1958 (hereinafter called 'the Act') is directed against the judgment and decree of the Additional District Judge dated November 30, 1979 for restitution of conjugal rights in favor of the respondent husband. The appellant and the respondent were married according to Hindu rites at Delhi on May 6, 1968. The appellant was employed as a teacher while the respondent was employed as Junior Engineer in Central Public works Department at Delhi on a transferable post. The respondent alleges that at time of marriage it was agreed that the appellant would leave her job and join him in case of his transfer out side Delhi. After the solemnisation of the marriage parties lived at houses bearing municipal number 1439/1452, Gali Murli Ban Wali, Bazar Chitli Qabar, Delhi and they went to Nanital for sometime. Sometime in July 1968 the appellant started insisting upon the respondent to live separately from his parents. He did not agree, being the only son of his parents. The appellant thereafter started misbehaving with the respondent and his relations i.e. his parents and sisters. She started fighting on trifles without any justification. The respondent and his relations, it is said, tolerated her behavior. In April 1971 the respondent was transferred to Calcutta where he joined duty on April 12, 1971. The appellant was requested sometimes in June 1971 to resign and join him at Calcutta but the respondent was told that she was in a family way and would join him after delivery. The appellant gave birth to a daughter on October 15, 1971 but she still refused to join the respondent at Calcutta? Respondent's sister shifted to Calcutta in May 1972. Appellant it appears also visited the respondent at Calcutta for sometime during school vacation. She however did not resign and did not shift to Calcutta. The respondent thus remained at Calcutta and the appellant in Delhi. In May 1973 respondent's mother fell seriously ill. He came to Delhi to look after his mother in.June 1973. It is alleged that the appellant was requested to attend her mother-in-law but she avoided. The respondent's mother died in July 1973.

(2) Marriage of appellant's brother was fixed for October 1. 1973. The appellant, it is alleged with a view to attend her brother's marriage took away all jewellery and clothes from the house of her father-in-law and on September 20, 1973 she went to her parents' house to attend the marriage of her brother. The respondent came down from Calcutta on September 30, 1973 to attend the marriage. The respondent and his relations also attended the marriage on October 1, 1973 but thereafter the appellant never returned to the matrimonial home. The respondent in his petition for restitution of conjugal rights also alleges that the appellant did not return without any excuse. In August 1974 the respondent was transferred back to Delhi but the appellant did not join him. Efforts were made by the relations and friends for reconciliation but without any result. The respondent sent a notice dated October 30, 1974 requesting her to return and avoid unhappiness in life. The appellant however did not respond, and sent a reply dated November 19, 1974. Finding no response from the appellant, the respondent filed the present petition under section 9 of the Act on May 12, 1975 alleging the said facts and requesting for a decree for restitution of conjugal rights.

(3) The appellant in her written statement denies the alleged agreement before marriage regarding leaving her teaching job and joining him at his place of posting if and when he was to be transferred from Delhi. She alleges that she never desired the respondent to live separately from his parents and have a separate house. She says that their treatment towards her was taunting, unbearable and insulting. She says that their behavior was abusive. She was used to live in large accomodation but she continued to reside in one small room without bath or kitchen in the house of the respondent Along with her parents-in-law and grown up sister with no privacy or partition at all. She further says that she was abused for not talking to respondent's sister during a cinema show, that she was not allowed to use the telephone to talk to her parents, that she had been giving her entire salary to her father-in-law and used to get only Rs. 5o.00 as her pocket money. She further says that the respondent was visiting Delhi while posted at Calcutta but he never spent any amount on her or their daughter and that he had been ill treating and neglecting her. She further alleges that during her pregnancy no domestic servant was engaged and she was made to do all house hold jobs such as cooking, washing, sweeping house before and after school hours and that she lost weight due to constant mental ill treatment and physical torture. It is also alleged that the respondent never asked her to resign and join him at Calcutta. The reason given is that the respondent and his parents never wanted loss of her salary. She also says that she attended her mother-in law while she was ill but she died and after her death the respondent his father and sister became more abusive and insulting. She also says that the ill treatment by the respondent and his relations caused reasonable apprehension in her mind that it would be injurious and harmful for her to stay with the respondent any longer. She denies that she took away jewellery and clothes while going to attend the marriage of her brother. She however admits that the respondent attended her brother's marriage an October I, 1973. Her further allegation is that the respondent wanted her parents to give him costly present at the time of her brother's marriage but she refused. On account of the above mentioned behavior and demands of the respondent she admits she did not return to the matrimonial home. She further alleges that the respondent has not been maintaining her and their daughter since her birth, that his behavior has always been cruel, that after exchange of notices there was a meeting between the parties in the presence of her father-in-law and other friends. She says that in the meeting it was agreed that the respondent would take a separate house on rent, withdraw the notice dated October 30, 1974 and would not initiate litigation, that all jewellery would be kept in a separate locker to be operated by her and the respondent and that he would deposit Rs. 15,000.00 on account of her probable savings out of her salary for six years which she used to give to her father-in-law in a fixed deposit account in joint names i.e in the name of the appellant, the respondent and their daughter. The appellant further says that the respondent avoided to implement the said agreement.

(4) In his replication the respondent says that the appellant's parent arranged separate accomodation for their residence in house No. 1462, Gali MurliBan Wali,Chitli Qabar, Delhi at a distance of 10/15 feet from his father's house) that they both had been living and sleeping in the said house but always taking their meals in the house of his father. The respondent denies that the appellant used to give her salary to him or his father. On the contrary he says that she had been retaining her salary with her and she also used to ask him to give his salary to her and not to give to his parents for boarding and lodging, that the delivery expenses in a private medical ward at St. Stephens Hospital, Tis Hazari. Delhi were born by him and his family always kept a maid servant for day to day house hold jobs except cooking and that the appellant never did any house hold work. He further says that the cooking was done by his mother and after her death cooking was also done by the maid servant. The respondent admits the meeting between the parties and their relations for reconciliation but the appellant laid down conditions for return to the matrimonial home such as to own a house and to pay Rs. 15.000.00 . All other allegations and the agreement as alleged by the appellant in her written statement are denied by the respondent.

(5) The trial court as already stated by the impugned decree and judgment held that there was no reasonable excuse for the appellant to stay away from the society of the respondent and a decree for restitution of conjugal rights was passed.

(6) The learned counsel for the appellant submits that the meaning of the word 'cruelty' for purposes of section 9 of the Act is different from the meaning given to the said word under sections 10 and 13 of the Act. He says that the word 'cruelty' is not to be given restricted meaning for the purposes of section 9. He says that the cruelty 'may' not be of such a nature as to cause reasonable apprehension in the mind of the appellant which would be harmful or injurious for her to live with the respondent. According to him cruelty of a minor nature would disentitle the respondent from obtaining a decree for restitution of conjugal rights. He submits that on account of the cruelty alleged against the respondent the trial court ought not to have passed any decree for restitution of conjugal rights.

(7) Section 9 of the Act before its amendment by Act 69 of 1976 was as under:-

'S.9(L)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 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. (2) Nothing shall be pleaded in answer to a petition for restitution of conjugal rights which shall not be a ground for judicial separation or for nullity of marriage or for divorce.'

Sub-section 2 of this section was deleted by the Amendment Act 68 of 1976 and following Explanationn was added to section 9.

'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.'

This section means that reasonable excuse need not the based on a matrimonial offence. However the excuse must be grave and weighty distinct from a matrimonial offence within the meaning of other provisions of the Act. What constitute a 'reasonable excuse' depends upon the circumstances of each case. The ordinary wear and tear of daily life is however not an excuse for the withdrawal of one from the society of the other. The Division Bench in Smt.Shanti Devi v. BalbirSingh and others, Air 1979 Del 294, held that the scope of the word 'reasonable excuse' in Sub-section (1) is not restricted to the grounds which under Subsection (2) can be taken in answer to a petition for restitution of conjugal rights. Thus, it seems that if there is an excuse which is grave and weighty justifying one to withdraw from the society of the other, a decree for a restitution of conjugal rights may not be passed by the court. The granting of a decree fur restitution of conjugal right is discretionary as the court should be satisfied of the various facts as detailed in Section 23 of the Act. Explanationn to Section 9 of the Act places the onus upon the parly who has withdrawn from the society of the other to prove the reasonable excuse. Even before the insertion of the Explanationn to Section 9 of the Act the onus to prove 'reasonable excuse' was upon the person who had withdrawn from the society of the other. The person who approaches the court under Section 9 of the Act has only to state the facts how and when the opposite party withdraw from. his or her society. The respondent in his application for restitution of conjugal rights narrated various facts and it seems that he has proved those facts. The appellant wife on the other hand in her written statement made only vague and general allegations against the respondent. She did not comply with the rules of pleadings. Under Section 21 of the Act power to frame rule is conferred upon the High Court. The Hindu Marriage (Punjab) Rules 1956 were' framed by the High Court of Punjab at Chandigarh in 1956 and those rules, it is not disputed) are applicable to the instant petition. Rule 4(vii) provides that petitions under Sections 9 to 13 of the Act shall state the matrimonial offence charged set in separate paragraphs with times and places of their alleged commission. After reading the written statement it would be clear that the alleged acts of cruelty are vague and general in nature. She did not mention any date or time of commission of any alleged act of cruelty. The place of commission has also not been mentioned but it may presumably be the house of the respondent where the parties used to reside after marriage. On account of failure to plead properly the alleged acts of cruelty with their date and place of commission, the trial court ought to have held that in the absence of pleadings no evidence can be looked into on vague allegations. It appears that after the recording of the evidence, the appellant was willing to join the respondent provided his father would not live with them. The trial court after going through the evidence on record came to the conclusion that there was no such justification for the appellant to put such a condition. During the course of argument before me the appellant appeared once. On enquiry if she was willing to join the respondent and live with him away from her father-in-law she replied that she apprehended danger to her life at the instance of the respondent and was unwilling to live with him. This appears to be an entirely new allegation. It only means that she is not inclined to join the respondent. The question however remains whether the respondent is entitled to a decree for restitution of conjugal rights against the appellant. The learned counsel for the appellant submit that the facts pleaded by her are sufficient to disentitle the respondent from claiming the society of the appellant. He says that the appellant was made to do all house hold jobs, that there was no maid servant in the house of the respondent even during the period of her pregnancy. His main stress is that the deposition of Ram Kali Public Witness PW2 is false and should not be relied upon. Ram Kali Public Witness PW2 in her statement recorded on January 30, 1976 says that she has been working at the house of the respondent for the last eight years, that she used to clean utensils and sweep the house, that she also used to wash clothes and cook food, that the respondent lived in a house nearby while his parents resided in the main house, that the respondent after marriage lived in the said house which consists of one room, laterine, bath and kitchen but they used .to take meals with the parents in the main house. She says that she used to clean the main house as well as the other nearby house in occupation of the appellant and the respondent that she used to visit the two houses daily for washing clothes of the entire family and to do other house hold jobs. According to this witness the appellant being a teacher in a school was not doing any house hold work and that she was being treated well by the members of respondent's family. In cross-examination she says that her salary initially was Rs. 50.00 per month and after four years it had been raised to Rs. 100.00 besides food and clothing. She says that she resides at Chitli Qabar is a house near the house of the respondent. The maid servant has a son and two daughters. When she joined the job with the respondent's parents in 1953 her son was aged Ii years and the daughter was aged 9 years. She says that in her absence her daughter used to do all house hold jobs of the respondent. She farther says that she also used to prepare the food for the child of the appellant. She denies that she was never in the employment of the respondent's family. She also denies that she did not cook meals. After reading portions of the statement of this witness, learned counsel for the appellant submits that this witness could not give the names of the two sisters of the respondent and thereforee she should not be believed. It is correct that this witness gave the name of one of the sisters only and did not tell the name of the other. I do not attach any importance to the failure of the witness-maid servant to give the name of one of the sisters. The maid servant is supposed to do the house hold jobs. She gives the names of various persons. She has stood the test of cross-examination. Her deposition has not been shaken at all. It is argued that the maid servant was never in the service of the respondent. It is urged that she was in whole time employment of a school. On a reference to the documentary evidence however it would be clear that this allegation is. not correct. The maid servant joined the respondent as a part time worker in 1968. Her salary initially was Rs. 50.00 per month and subsequently (say 1972) it was raised to Rs. 100.00 per month. It is in evidence that she was temporarily employed in May 1972 in Government Girls Middle School, Charkhe Walan, Delhi. Ex. RW2/1 is a certificate from the authorities showing that Ram Kali of 1019, Chitli Qabar, Delhi had been working as a water woman in the said school in the morning shift since May 1972 up to the date of issuance of this certificate. This certificate was issued on March 28, 1979. Ex. RW3/2 is another letter dated May 20, 1972 from the Directorate of Education, Delhi to the Head Mistress of the said school sanctioning the appointment of a part time water woman out of the pupils fund at Rs. 3.00 per day for the period from May 1, 1972 to May 15, 1972 only. Further Ex. RW3/3 is another sanction letter showing that Ram Kali was appointed as a water woman in the school with effect from July 15, 1972 on a monthly salary of Rs. 35.00 . This sanction is dated July 15, 1972. From this documentary evidence it would be clear that Ram Kali joined the school service as a part time water woman in May 1972 on a paltry sum of Rs. 35- per month. It does not mean that she has always been in the school incapable of doing any other part time job meant for maid servants in the nearby locality. It is not disputed that the school where she had been working and the house of the respondent are situated in the same locality. Moreover the maid servant is assisted by her daughter also in her day to day part time jobs with the respondent. Admittedly parties were married in May 1968. There is nothing on record to show that Ram Kali maid servant was employed elsewhere as full time worker from 1968 to May 1972 when she joined the school as a part time worker. The appellant has failed to place on record any material to show that Ram Kali was not doing house hold jobs in the house of the respondent. She joined service of the respondent in January 1968 and no question was put to her that she was in full time employment of the school while she was under cross-examination. The appellant in her written statement says that during her pregnancy no domestic servant was engaged and that she was doing all house hold jobs. There is no plea that there was no domestic servant before or after the period of pregnancy. It is in evidence that respondent's father is a sales executive in a limited concern at New Delhi getting Rs. 2000.00 per month, respondent is a junior engineer in C. P. W.D. and the appellant is a teacher employed in a girls school. There were thus three earning members in the family and it is unbelievable that even a maid servant for house hold jobs would not be employed by them. As a matter of fact the maid servant joined the respondent for doing the house hold jobs before the marriage between the parties. It is, thereforee, clear that the defense put up by the appellant is not correct. The documentary evidence produced by the witness on her behalf proved that the maid servant was only a part time water woman getting only Rs. 35.00 per month and that she was not in the full time employment. There is no suggestion how the house hold jobs were got done when the respondent his father and the appellant were all in service. On the contrary it is in evidence that the appellant never used to do any house hold work as she was busy in her teaching job. After giving my careful consideration to the statement of R am Kali Public Witness Public Witness 2 I am of the view that she has been in the part time service of the respondent. The evidence of other witnesses on behalf of the respondent also leads me to the conclusion that the appellant was treated well in the house of the respondent and that there was no excuse for her to leave the society of the respondent. The evidence led by the appellant consists of herself, her father and others but their statements do not lead to the conclusion that there was any excuse for her to withdraw from the society of the respondent. The statement of the appellant and her witnesses are also general in nature. Any particular act of cruelty has neither been pleaded nor proved. The learned counsel for the appellant read certain portions of the evidence on record but on account of vague allegations the appellant has not made out any ground for her withdrawal from the society of the respondent.

(8) The evidence in the trial court was concluded on September 20 1979 and after reading the statement of the appellant in cross-examination it would be clear that she wanted to live separately from her father-in-law in a separate house. The respondent thereforee filed his affidavit dated October 5, J 979 stating that his father had constructed a double storey house at BH-736, Shalimar Bagh, Delhi on a plot measuring 150 square yards having two rooms, drawing & dinning besides bath and latrine on each floor and that he has been willing to keep the appellant in the said newly constructed house. The appellant in her counter affidavit dated October 10, 1979 deposed that she had no knowledge if respondent's father had constructed the said house at Shalimar Bagh, and that she could not live in a house where her father-in- law would also reside and that she could go with the respondent without any condition except that his father should not live with them in the premises. She also challenged the bona fides of the respondent.

(9) After giving my careful consideration to the facts of the case and evidence on record brought to my notice it appears that the apprehensions of the appellant are imaginary and she has failed to make out reasonable excuse for her withdrawal from the society of the respondent. When a new house had been constructed by respondent's father and there is a genuine offer by the respondent to occupy that house, the appellant did not accept the same. There was no allegation of mala fide against the respondent when the said offer was made. She could have gone and lived with him in a separate house as offered by him. Moreover when she appeared before me as already stated she came out with an entirely new plea that she apprehends danger to her life from the respondent. Moreover, for the reasons best known to her she has not joined the respondent. The relations between the parties were cordial up to September 1973 when the appellant went to her parents' house to attend the marriage of her brother. The respondent who was at Calcutta came to Delhi. He and his relations attended the marriage. She did not return to the matrimonial home after her brother's marriage. It is also in evidence that respondent was transferred to Calcutta and during his absence from Delhi the appellant used to stay with her parents-in-law and she also used to visit her parents and stay with them. The correspondence between the parties from time to time, placed on the record also does not disclose any excuse for withdrawal of the appellant from the society of the respondent. As already stated the onus to prove reasonable excuse to live separately from the respondent under section 9 of the Act is on the appellant but to my mind she has failed to prove any reasonable excuse. The vague and general allegations in the written statement and the evidence beyond pleadings cannot take the place of legal proof. I am satisfied that there is no reasonable excuse available to the appellant for not living with the respondent. There is no infirmity in the judgment of the trial court. The appeal has no merit and thereforee the same is dismissed with no order as to costs.


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