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Smt. Kaushliya Alias Maya Vs. Lal Chand - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Misc. Appeal No. 24 of 1970
Judge
Reported in1972WLN282
AppellantSmt. Kaushliya Alias Maya
RespondentLal Chand
DispositionAppeal dismissed
Cases ReferredTimmina v. Timmina
Excerpt:
.....to be satisfied about its truth and legal ground.;the husband or the petition for restitution of conjugal rights has to satisfy the court that the other spouse has, without reasonable excuse, withdraw from the society of the petitioning spouse. the court has to be satisfied about the truth of the statements made in the petition & also that there was no legal ground why the application should not be granted. it is then only that a decree for restitution of conjugal rights is passed. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date..........the relief prayed for namely, restitution of conjugal rights should have been granted to the wife. learned counsel maintains that since the two spouses were living separately and the husband had not shown any reasonable excuse for denial of conjugal rights to the wife, the petition should have been allowed and a decree passed in favour of the wile.4. i may read section 20 of the act:section 20 contents and verification of petitions.--(1) every petition presented under this act shall state as distinctly as the nature of the case permits the facts on which the claim to relief is founded and shall also state that there is no collusion between the petitioner & the other party to the marriage;(2) the statements contained in every petition under this act shall be verified by the.....
Judgment:

Kan Singh, J.

1. This is a wife's appeal against the judgment of the learned District Judge Aimer dated 14-5-70 dismissing her application for restitution of conjugal right against her husband under, Section 9(1) of the Hindu Marriage Act, 1955, hereinafter to be referred as the Act

2. The wife averred that she was married to the husband at Nasirabad on 4-12-61 according to the Hindu rites. After the marriage the couple lived happily till October, 1967. The wife proceeded to say that her husband had fumed he out of the matrimonial home after giving her a severe beating. According to her, the husband was in desertion without any reasonable excuse. The responded -husband traversed the averments in the wife's petition. He stand that it was the wife who had deserted him and she was being kept back at Nasirabad by her parents and had not come to him even though he had gone to fetch her The learned District Judge framed one issue namely whether the respondent had withdrawn from the society of the petitioner as alleged in para 3 of the petition. Once or twice the parties took adjournments for reconciliation but eventually on 9.5.70 both the learned Counsels stated that none of them wanted to adduce any evidence. Accordingly the learned District Judge set down the case for arguments and on 14-5-70 dismissed the wife s petition under Section 9 of the Act.

3. Learned Counsel for the wife- appellant has assailed the judgment of the learned District Judge. He contends that in accordance with Section 20 of the Act whatever was contained in the wife's petition should nave been treated as evidence in the case and in that the husband had admitted the marriage the relief prayed for namely, restitution of conjugal rights should have been granted to the wife. Learned Counsel maintains that since the two spouses were living separately and the husband had not shown any reasonable excuse for denial of conjugal rights to the wife, the petition should have been allowed and a decree passed in favour of the wile.

4. I may read Section 20 of the Act:

Section 20 Contents and verification of petitions.--(1) Every petition presented under this Act shall state as distinctly as the nature of the case permits the facts on which the claim to relief is founded and shall also state that there is no collusion between the petitioner & the other party to the marriage;

(2) The statements contained in every petition under this Act shall be verified by the petitioner or some other competent person in the manner required by law for the verification of plaints, and may, at the hearing be referred to as evidence.

Sub-section (2) of Section 20 contains a special rule of evidence for treating the statements contained in a petition under this Act as evidence at the hearing of the case but it is discretionary. The discretion has to be exercised sparingly & with caution in special & extraordinary situations. The situation of the trial court was not attracted to this provision otherwise it would have made certain observations regarding it. Nevertheless I have considered the submission. Here is a case where in the petition the wife has alleged that the husband had deserted her and had turned her out of the house after giving her a beating (vide para-2 of the petition). In para-2 of the reply the husband has denied the averments contained in para-2 of the petition & has, on the other hand, stated that he had gone to fetch the wife, but she was not coming and her father was not sending her. In such a case, therefore, it cannot be said that the statements contained in wife's petition should have been read as evidence in the case in the absence of there being any other evidence. Whatever was asserted by the wife was denied by the husband and in the absence of any other evidence the denial of the husband would be a counterpoise against what the wife had stated in the petition. I, therefore, do not find any substance in the contention of the learned Counsel.

5. Then the learned Counsel submitted that it was for the husband to establish existence of any reasonable excuse for keeping away from the wife. Here also I am unable to agree that this is the law. I may read Section 9:

Section 9. Restitution of conjugal rights.-(1) 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 he 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.

The plain language of Sub-section (1) of Section 9 shows that the husband or die wife making the petition for restitution of conjugal rights has to satisfy the court that the other spouse has, without reasonable excuse, withdrawn from society of the petitioning spouse. The court has to be satisfied about the truth of the statements made in the petition and also that there was no legal ground why the application should not be granted. It is then only that a decree for restitution of conjugal rights is passed Sub-section (2) lays down as; to what grounds would be available by way of defence and the grounds are such as would be a ground or grounds for judicial separation or for nullity of marriage or for divorce.

6. In Mst. Gurdev Kaur v. Sarwan Singh AIR 1959 Punj. 168, A.N. Grover, J., as he then was, had occasion to consider the import of Section 9 of the Act. The learned Judge observed:

Although Sub-section (2) of Section 9 of the Hindu Marriage Act confines pleas in defence only to those grounds which can be taken under Sections 10, 12 and 13 of the Act, Sub-section (1) itself lays down certain conditions which must be fulfilled before a decree can be granted. It will have to be seen firstly whether the husband or wife, as the case may be, has withdrawn from the society of the other without reasonable cause. The second requirement is that the court must be satisfied of the truth of the statements made in such a petition. Thirdly, there should be no legal ground why the relief should not be granted.

The first requirement seems to incorporate the rule accepted in English law that while granting restitution it has to be seen whether the respondent had a reasonable cause for leaving the petitioner and the Court has discretion to refuse relief if reasonable cause exists even in the absence of matrimonial offence. The test, however, as to what constitutes reasonable cause would vary with the circumstances of such case. It will have to be applied in the changed social conditions as they obtained today and not with the rigid back ground of the tenets of the old texts of Manu & other Hindu law givers,

Therefore, even where the answering spouse is not able to establish the legal grounds raised by him or her, the petitioning spouse has nevertheless to satisfy the court that the answering spouse has denied the conjugal rights without a reasonable excuse.

7. In the same effect is a Division Bench judgment of the Calcutta High Court recorded as Smt. Robarani v. Ashit AIR 1965 Cal. 188. In that case the husband filed the petition for restitution of conjugal rights. It was held that the onus of proof was on the petitioner and the petition could not succeed merely because wife's defence had not been established.

8. It is, however, to be noticed that it is not each and every excuse that the court would regard as a reasonable excuse or a just cause. It was held by the Court of Appeal in Timmina v. Timmina 1956 (3) All. ER. 187 that the reasons for the withdrawal from the society of the petitioner must be 'grave and weighty', or as it is sometimes said 'grave and convincing', though these reasons may be distinct from a matrimonial offence. In that case the husband was not held guilty of cruelty, but his conduct was found to be a grave and weighty matter which gave the wife good cause for leaving him and this prevented him from obtaining a decree for restitution of conjugal rights unless and untill the husband, satisfied the court that if the wife returned to him, he would behave with conjugal kindness & thus this was taken to be a defence to the husband's petition for restitution.

9. I am in respectful agreement with the view taken in the aforesaid three cases. Therefore, in the absence of any evidence in the case it cannot be predicated that the wife is entitled to succeed merely on the ground of statement made by her in the petition.

10. The appeal has thus no force & it is hereby dismissed. The parties are, however, left to bear their own coasts.


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