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Smt. Kanta Choudhary Vs. Rajendra Choudhary - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Misc. Appeal No. 126/1981
Judge
Reported in1982WLN774
AppellantSmt. Kanta Choudhary
RespondentRajendra Choudhary
DispositionAppeal dismissed
Cases ReferredIn Sushil Kumari v. Prem Kumar
Excerpt:
hindu marriage act, 1955 - section 24--non compliance of order under section 24--appellate court may refuse to hear respondent or proceed exparte--held, appellate court cannot be asked to allow appeal;in view of the non compliance of the order passed under section 24 of the act by the respondent the appellate court may refuse to hears the respondent and may proceed to hear the appeal ex parte and allow the appeal if the appellate court is satisfied that the judgment of the lower court cannot be sustained. but the appellant cannot ask for the appeal being allowed because the respondent has failed to comply with the order passed under section 24 of act.;(b) hindu marriage act, 1955 - section 9--restitution of conjugal rights--wife refusing to accept husband's offer to live.....s.c. agarwal, j.1. this appeal filed by the appellant smt. kanta choudhary arises out of a petition for restitution of conjugal rights filed by the appellant again the respondent rajendra choudhary the said petition has been dismissed by the district judge, jodhpur by his judgment dated september 23, 19812. the appellant and the respondent were married at jodhpur on november 7, 1976 according to the hindu rites. a daughter was born to the appellant on august . 1977. on may 27, 1978 the appellant left the respondent's house and started living with her parents. on june 26, 1978 the appellant filed the petition for restitution of conjugal rights under section 9 of the hindu marriage act (hereinafter referred to as the act) against the respondent in the said petition the case of the appellant.....
Judgment:

S.C. Agarwal, J.

1. This appeal filed by the appellant Smt. Kanta Choudhary arises out of a petition for restitution of conjugal rights filed by the appellant again the respondent Rajendra Choudhary The said petition has been dismissed by the District Judge, Jodhpur by his judgment dated September 23, 1981

2. The appellant and the respondent were married at Jodhpur on November 7, 1976 according to the Hindu rites. A daughter was born to the appellant on August . 1977. On May 27, 1978 the appellant left the respondent's house and started living with her parents. On June 26, 1978 the appellant filed the petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act (hereinafter referred to as the Act) against the respondent In the said petition the case of the appellant was that after her marriage appellant was ill treated by the parents and the elder brother of the respondent for the reason that the parents of the appellant had not given sufficient dowry and had given insufficient presents on the occasion of the birth of the daughter of the appellant and that the respondent also sided with his parents and his elder brother and started maltreating the appellant with a view to extract money and goods from the parents of the appellant The appellant further submitted that on May 27, 1971 the respondent was forced to go her parents' house and that 5-6 days prior to the appellant's having the respondents' house on May 27, 1978 the appellant was kept confined in a room during which period the respondent and his parents and elder brother kept pressing appellant to put her signatures on a blank paper an 1 a stamp paper for the purpose of preparing a false document and the appellant was denied food as well as water and was also threatened with assault that as a result of the aforesaid treatment meted to her the appellant put her signatures on the blank stamp paper as well as other blank papers & the document that has been prepared on the said stamp paper is void and not binding on the appellant In her petition the appellant also seated that the respondent had forced the appellant to go to her parents house because he wants to marry again & that there was no reasonable cause for the respondent living separately from the appellant. The appellant has also state that respondent is a man of bad character & has illicit relations with other women and is involved with the nurses in hospital and indulges in improper acts with them. The appellant has asserted that she wants to live with the respondent and is prepared to discharge her marital obligations as a wife and that the respondent should also discharge his marital obligations and should not side with his parents in their demand for dowry and should live separately from his parents. In the petition the appellant prayed that a decree for restitution of conjugal rights be passed in favour of the appellant against the respondent.

3. The said petition was contested by the respondent. In his written statement dated August 14, 1978. the respondent pleaded that both the parties belong to the Jats community and among Jats there exists, since long,, the custom of 'chhutapa' (divorce by consent) In the said reply it has been denied that the parents of the respondent and his elder brother had maltreated the appellant on account of her having brought insufficient dowry or for any other reason and, on the other hand, it has been asserted that the appellant, under the influence of her parents, was misbehaving with the respondent and members of his family. In the said reply it was asserted that Kanwerlal, the father of the appellant, had made a false complaint against Mangilal, the father of the respondent, and Omji, the elder brother of the respondent, on November 29, 1977 before the Additional Munsif and Judicial Magistrate No. 2, Jodhpur, wherein it was stated that on November 29, 1977 at about 12.00 P.M. the appellant's father Kanwar Lal, had gone to the house of the respondent and that Mangi Lal and Omji met him there & did not allow Kanwar Lal and Omji to meet the appellant and also extended the threat that if he or any person of his family tried to meet the appellant her ear and nose would be cut and that in the said report it was also stated that Kanwar Lal was assaulted and forcibly turned out of the house by the said Mangilal and Omji and that the appellant was kept confined in a room and she was crying loudly. In his written statement the respondent stated that the aforesaid complaint of Kanwar Lal was sent by the Additional Munsif and Judicial Magistrate for investigation under Section 156(3) Cr. P.C. to the S.H.O. Police Station Udaimandir. and that the S.H.O. Police Station Udaimandir after registering said complaint, obtained a search warrant and went to the house of respondent and recorded the statement of the appellant and from the aforesaid statement made by the appellant it was found that the complaint made by Kanwarlal, the father of the appellant was totally false and that the appellant had not beers assaulted by the respondents relatives and that she was living comfortably in the respondents house and therefore the said complaint of appellant's father was dismissed and that as a result the father of the appellant has become very angry and he and the members of the family have been batching plots against the respondents and and the members of his family and the effort of the parents of the appellant is to some how bring the appellant to their house so that the respondent & members of his family are put to trouble and the appellant's father may take the revenge for his insult. In the said reply the respondent also stated that the appellant's parents also made on effort to instigate the appellant through anonymous letters and that in view of the constant harassmant that was caused to him by the appellant and her parents the respondent asked appellant and her relatives as to what they actually wanted thereupon the appellant and her parents stated that the appellant wants to divorce the respondent and thereupon the respondent divorced the appellant on May, 26, 1978 and appellant also executed a document on a stamp paper, which was duly attested by Notary Public, whereby she voluntarily terminated the marriage tie with the respondent and thereafter the appellant on her own free will went to her parents' house. In the written statement the respondent denied that the appellant was kept confined in a room for 5-6 days prior to May 2, 1978 and that her signatures were obtained on a blank paper or stamp paper by putting pressure on her. In the said reply the respondent has denied that the respondent is a man of bad character or is availing illicit relations with any other women or is involved with the nurses in the hospital and, on the other hand, it was submitted that in view of the false allegations of adultery made by the appellant in para 7 of her petition, the appellant was not entitled to a decree for restitution of conjugal rights. In the written statement the respondent also submitted that the only purpose of riling the petition for restitution of conjugal rights was that the appellant wants to claim maintenance allowance from the respondent and that the appellant had also initiated separate proceedings for claiming maintenance allowance against the respondent in the court of Judicial Magistrate No. 4, Jodhpur. The respondent submitted that in view of the mutual agreement for divorce that has been arrived at between the parties on May 26, 1978 that matrimonial ties between the parties have been snagged and no decree for restitution of conjugal rights could be passed in favour of the appellant.

4. On the basis of the aforesaid pleadings the District Judge framed four issues on December 19, 1978. Issue No. 1 was as to whether for the reasons set out in paras 5,6 and 9 of the petition, the respondent has, without any reasonable cause expelled the appellant from his house and has left her since May 27, 1978 and that appellant is entitled to a decree for restitution of conjugal rights. Issue No 2 was whether amongst the caste of the parties, there has been in existence since long the custom of giving 'chhutapa' (divorce). Issue No. 3 was as to whether the appellant has by her own will terminated the marriage by taking 'Chhutapa' (divorce) in accordance with the custom prevalent in the caste, on May 26, 1978 and has, for that purpose, put her signatures on the divorce deed and that the petition for restitution of conjugal rights was not maintainable. Issue No. 4 was with regard to the relief.

5. Before the aforesaid issues were framed the District Judge had made an effort for reconciliation between the parties and the order dated August 14, 1978 passed by the District Judge shows that on that date the appellant as well as respondent were both present in the Court and while the appellant had expressed her willingness to go with the respondent unconditionally the respondent was not willing and, therefore, no reconciliation could be possible Subsequently during the course of trial on July 5, 1979 the respondent moved an application wherein he stated that although the appellant had, by her own free will, taken a divorce on May 26, 1978, yet the respondent was willing to keep the appellant with him as his wife if the appellant was so willing and it was prayed that the appellant be directed to go and live with the respondent in his house. The appellant, in her reply dated July 25, 1979, to aforesaid application of the respondent asserted that the offer that had been made by respondent in his application dated July 5, 1979 was not a bonafide offer. In her aforesaid reply the appellant submitted that unless the respondent creates confidence in the appellant that he would treat the appellant properly, the appellant in view of the past conduct of the respondent, apprehended danger to her life and that no notice should be taken of the said application of the respondent. The appellant prayed that the application dated July 5, 1979 submitted by the respondent be dismissed. Thereafter the respondent moved an application dated August 7, 1979 wherein he referred to the offer contained in his application dated July 5, 1979 and the rejection of the said offer by the appellant and the respondent prayed that in view of the aforesaid conduct of the appellant her application for restitution of conjugal rights should be dismissed. In view of the aforesaid developments that had taken place the District Judge framed an additional issue (Issue No. 3A) on November, 23, 1979. The said issue was as under:

3A-Whether the petition is now no more maintainable as the petitioner is not willing to live with the respondent ?

6. On December 14, 1979 the appellant moved an application under Order 6 rule 17 C.P.C. for amendment of her petition. By the proposed amendment the appellant, instead of claiming a decree for restitution of conjugal rights under Section 9 of the Act, wanted a decree for judicial separation under Section 10 of the Act to be passed in her favour. By the aforesaid application the appellant wanted to make certain additions in para 8 of the petition so as to assert that in view of the conduct of the respondent in obtaining the signatures of the appellant under duress and coercion the appellant apprehends danger to her life if she stays with the respondent and that the respondent is openly declaring the once the appellant comes to the house of the respondent she would not return alive from the said house. By the aforesaid amendment application the appellant also wanted to insert para 9A in the petition whereby she wanted to introduce the allegations about adultery and cruelty as against the respondent. The said application for the amendment of the petition was rejected by the District Judge by his order dated March 12, 1980 on the ground that the relief of restitution of conjugal rights and relief of judicial separation are inconsistent to each other and by proposed amendment the appellant wanted to alter the nature of petition which could not be permitted.

7. The appellant, in support of her case, examined herself, as PW 1, The respondent, in support of his case, examined himself as D W l and also examined his father Mangilal as DW 2 In addition to the aforesaid oral evidence the respondent also produced documentary evidence (Ex Al to A 10).

8. In her statement in examination-in-chief. the appellant stated that she is willing to go and live with the respondent if he is able to create confidence in her that he would behave properly and would not demand dowry. During the course of cross examination the appellant stated that she is willing to go with the respondent if he comes to her parent's house and assures her and creates confidence in her that he will behave properly and that if the respondent is not willing to do so, she was not prepared to go with him. The respondent in his statement, in examination-in-chief, has stated that be is prepared unconditionally to keep the appellant with him as his wife.

9. The District Judge, by his judgment dated September 23, 1981, dismissed the petition for restitution of conjugal rights filed by the appellant while dealing with issue No. 1 based on the averments about ill treatment of the appellant by the respondent, his parents and his elder brother, as contained in paras 5.6 and 9 of the petition, the District Judge has held that no satisfactory evidence had been adduced by the appellant to prove the allegations contained in paras 5,6, and 9 of the petition and that on the other hand from the statement (Ex. A8) made by appellant to the SH.O., Police station Udaimandir, during the course of investigation into the complaint that the was filed on November 29, 1979 by the father of the appellant, wherein she denied that the she had been locked in a room and had stated that the allegations (hat had been made by her father against the father and elder brother of the respondent were false, it can be inferred that the father of the appellant did not want the appellant to live peacefully in the house of the respondent and had been instigating her. The District Judge has also referred to the letters Ex. A2, 4,5,6 and A 10 written by the nppellant to the father of the respondent and has held that the said letters also show that the respondent & the members of his family were not in any way harrassing or maltreating the appellant and that the allegations with regard to insufficiency of the dowry or inadequate presents at the time of the birth of the daughter and other maltreatment of the appellant which have been made against the respondent and the members of his family were baseless. The District Judge did not accept the case of the appellant that her signatures have been obtained by coercion on the divorce deed (Ex.A1) & has held that from the evidence that had been adduced by the appellant it cannot be said that the respondent had got the said document executed by confining the appellant in a room & exercising pressure over her. The District Judge has held that from the evidence adduced by the respondent it is established that appellant had left the house of the respondent on her free will without there being a proper of reasonable cause. With regard to issue No. 2 and 3 the District Judge held that on the basis of the evidence adduced by the respondent it could not be held that a custom of divorce by consent exits in the community to which the appellant and respondent belong. The said issues were, therefore, decided against the respondent. With regard to issue No. 3 A the District Judge referred to the order dated August 14, 1978, the application dated July 5, 1979 submitted by the respondent, the application dated December 14, 1979 submitted by the appellant for the amendment of the petition and has held that from the application for amendment of the petition dated December 14, 1979 submitted by the appellant it is clear that the appellant does not want restoration of the matri-morJal relations with the respondent and that her claim that she wants to live with the respondent is only a pretence & is not bonafide. The District Judge was further of the view that in para 7 of the petition the appellant had made an allegation about the character of the respondent & has alleged that the respondent is having illicit relations with other women but she has failed to adduce any evidence in respect of said allegation, which has been denied by the respondent and his father & in view of the false allegation about bad character of the respondent made by the appellant in her petition, the appellant was not entitled to any relief from the court. In view of the findings aforesaid the District Judge dismissed the petition for restitution of conjugal rights filed by the appellant. Hence this appeal.

10. I have heard Mr. M. L. Kala, the learned Counsel for the appellant and Mr. A. L. Chopra, the learned Counsel for the respondent.

11. Before dealing with the merits of the appeal it will be necessary to deal with the application dated September 1, 1982 that has been submitted by the appellant wherein it has been submitted that respondent has failed to comply with the order for payment of maintenance passed by this Court and the appeal should therefore be allowed. In this regard it may be pointed out that during the pendency of this appeal the appellant had moved an application before this Court on November 16, 1981, under Section 24 of the Act wherein she prayed that the respondent be directed to pay maintenance allowance and litigation expenses to the appellant, and on the said application this Court passed an order dated February 8, 1982 whereby it was ordered that respondent should pay to the appellant an interim maintenance @ 75/- per month from the date of the application and expenses for litigation amounting to Rs 250/- , inclusive of expenses for preferring an appeal and counsel's fee. In the order aforesaid it is stated that the applition under Section 24 of the Act was filed on November 16, 1981 and the respondent was directed to pay the entire amount of maintenance together litigation expenses as ordered within one month from the date of the passing of the said order. The aforesaid period for making the payment was extended by 15 days by order dated March 11, 1982. The respondent paid of Rs. 775/- to Shri M. L. Kala, the counsel for the appellant, on July 12, 1982. The aforesaid amount of Rs. 775/-represents the maintenance allowance for the period from November 12, 1982, June 12, 1982 and litigation expenses amounting to Rs. 250/-. The maintenance allowance for the period from June 12, 1982 to August 12, 1982 was paid by Shri A. L. Chopra, the learned Counsel for the respondent to Shri M. L. Kala, the learned Counsel for the appellant, in Court on September 6, 1982.

12. Section 24 of the Act enables the court to pass an order directing payment of maintenance pendente lite and expenses of proceedings by one spouse to the other. Such an order is enforceable as a decree under Section 28A of the Act. Since the aforesaid mode of enforcement may not, prove effective so as to enable the party in whose favour the order has been passed to avail the benefits of the said order during the pendency of the proceedings, the court in exercise of its inherent powers, can pass an appropriate order for securing the compliance with an order passed under Section 24 by the defaulting party. In case the defaulting party happens to be the petitioner or the appellant the court may pass an order staying further proceedings till the order passed under Section 24 complied and if the default is persistent it may dismiss the petition or appeal. In case where the defaulting party is the respondent the court may refuse to hear it till the order passed under Section 24 of the Act is duly complied & may strike off the defence of the defaulting party. But in my opinion the appellate court would not be justified in allowing the appeal on the around that the respondent has failed to comply with the order passed under Section 24 of the Act. For the purpose of allowing the appeal the appellate court has to set aside the judgment of the court below and this can be done only if the appellate court reverses the findings recorded by the trial court. In view of the non compliance of the order passed under Section 24 of the Act by the respondent the appellate court may refuse to hear the respondent and may proceed to hear the appeal exparte and allow the appeal if the appellate court is satisfied that the judgment of the lower court cannot be sustained. But the appellant cannot ask for the appeal being allowed only because the respondent has failed to comply with the order passed under Section 24 of the Act. For the reasons aforesaid the application submitted by the appellant on September 1, 1982 for allowing the appeal on the ground that the respondent has failed to comply with the order dated February 8, 1982, cannot be accepted.

13. More over in the present case the respondent has paid the litigation expenses as well as maintenance allowance payable by him to the appellant in pursuance of the order passed by this Court on February 8, 1982 and it cannot be said that respondent is in default of compliance with the order passed by this Court on February 8, 1982 which may justify this Court refusing to hear the respondent.

14. At this stage it may be observed that during pendency of this appeal before this Court the matter was taken up for reconciliation on July 12, 1982, on which date the appellant as well as respondent were both present in the Court. The order dated July 12, 1982 shows that on that day both the parties had agreed to live together as husband and wife and the appellant had expressed her willingness to go with the respondent on the same day and thereupon the court had passed an order directing both of them to go back and had further directed the matter to be taken up for further consideration on July 13, 1982 in the chambers at 2. 00 p. m. On July 13, 1982 when the matter was taken up in the chambers, the respondent was present but the appellant was not present The respondent stated that even though the appellant had accepted before the court on July 12, 1982 that she was willing to go with the respondent but later on she resiled and did not accompany the respondent to has house. The court in its order dated July 13, 1982 has recorded that the appellant had not appeared inspite of the order of this Court and the learned Counsel for the appellant was unable to produce the appellant in the court. Although the order sheet dated July 13, 1982 shows that appellant did not appear before the court in the chambers at 2. 00 p. m. on that day, it appears that affidavits of the appellant, her mother Smt. Ganga and her father Kanwar Lal were filed in the court on July 13, 1982. The said affidavits appear to have been sworn before the Oath Commissioner on July 13, 1982 at 10 45 A. M. and in the said affidavits it has been stated that after the order July 12. 1982 had been passed by the Court the mother of the appellant called the respondent with a view to talk to him and also to offer him some money as a 'Bidai' and that the respondent refused to meet her and when the father of the appellant went to bring him the respondent told him to send the appellant with the respondent if he so wished. In the said affidavits it has also been stated that the father of the respondent behaved in an improper manner with the father of the appellant in the court and that 3-4 persons were present with respondent and they started following the appellant when she came out of the court room as a result of which she became afraid and since respondent did not ask her to go with him she felt that the respondent had no intention to keep the appellant with him and that the appellant is willing to live with respondent only when she is satisfied that the respondent is really willing to keep her with him separately from his father and other persons. A reply to the said affidavit of the appellant and her father and mother has been filed by the respondent wherein the averments contained in the aforesaid affidavits have been denied and it has been asserted that respondent is willing to keep the appellant with him

15. I may now come to the merits. As noticed earlier the District Judge has decided issue No. 1,3-A and 4 against the appellant and issues No. 2 and 3 have been decided against the respondent. Shri M.L. Kala, the learned Counsel for the appellant has assailed the findings recorded by the District Judge against the appellant on issue Nos. 1, 3-A and 4. Shri A.L. Chopra, the learned Counsel for the respondent has supported the findings recorded by the District Judge on these issues. The findings recorded by the District Judge on issues Nos. 2 and 3 have not been challenged before me.

16. In view of the findings recorded by the District Judge on issue Nos. 1, 3-A and 4 the questions which arise for consideration in this appeal are:

(i) Have the present proceedings for restitution of conjugal rights been instituted bonafide by the appellant ?

(ii) Has the respondent withdrawn from the society of the appellant without any reasonable cause ?

(iii) Is the appellant disentitled to seek the relief of restitution of conjugal rights on account of her having charged the respondent with adultery ?

17. As regards the first question referred to above it may be observed that the law is well settled that a decree for restitution of conjugal rights may be refused if the court finds that the petition is not presented bonafide, and there is an ulterior motive other than the sincere desire for a resumption of cohabitation. (See; Halsbury's Laws of England, 3rd Edition, Vol. 12 p. 285 paragraph 556).

18. In Syal v. Syal AIR 1968 Pun. 482 it has been observed that the significant feature of a petition for restitution of conjugal right is that it is a remedy aimed at preserving the marriage and not at dissolving it, as in the case of divorce or judicial separation and that being purpose of the petition for restitution of conjugal rights the petitioner must show that he is sincere in the sense that he has a bonafide desire to resume matrimonial cohabitation and to render the rights and duties of such cohabitation. To the same effect is the Jaw laid down by the Delhi High Court in Smt. Sushil Kumari v. Prem Kumar AIR 1970 Del. 321

19. In the present case the appellant has come forward with the case that she has always desired to live as wife with the respondent and that the respondent has withdrawn from the society of the appellant without reasonable cause and, therefore, a decree for restitution of conjugal rights should be passed in her favour. On November 14, 1978 when the District Judge had made an effort for reconciliation the appellant had expressed her willingness to go and live without any conditions and it was the respondent who had expressed his unwillingness to live with the appellant. But on July 5, 1979 the respondent moved an application before the District Judge wherein he offered to accept the appellant as his wife and expressed his willingness to keep the appellant, with him and this time the appellant in her reply dated July 25, 1978 to the said application, opposed the said application dated July 5, 1979 submitted by the respondent on the ground that the offer made by the respondent in his application dated July 5, 1979 was not a bonafide offer but was fake offer. In the aforesaid reply the appellant, on the other hand, asserted that she apprehended danger to her life if she was required to go and live with respondent. Apart from aforesaid reply dated July 25, 1979 opposing the application dated July 5, 1979 submitted by the respondent, the appellant also moved an application dated December 14, 1979 for amendment of the petition whereby she wanted to amend the relief prayed by her in her petition from one for a decree for restitution of conjugal rights under Section 9 of the Act to one for a decree for judicial separation under Section 10 of the Act. In the said application for amendment the appellant again asserted that the appellant apprehended danger to her life if she was required to live with the respondent. From the circumstances referred 10 above it appears that the real object of the respondent in filing and prosecuting the petition is not the restoration of the matrimonial relation between the appellant and the respondent but termination of the same. The conduct of the appellant during the pendency of this appeal before this Court also lends support to this inference in as much as the appellant did not accept the offer that was made by the respondent before this Court on July )2, 1982, to keep the appellant with him. The object of the appellant in prosecuting these proceedings for restitution of conjugal rights appears to be to seek a decree for divorce under Section 13A of the Act after obtaining a decree for restitution of conjugal rights and the proceedings for restitution of conjugal rights are not founded on a sincere desire for a resumption of cohabitation on the part of the appellant. The District Judge was therefore, right in holding that there is lack of bonafides on the part of the appellant in presenting and prosecuting and proceedings and that petition for restitution of conjugal rights submitted by the appellant is liable to be dismissed for this reason.

20. As to whether the respondent can be said to have withdrawn from society of appellant without reasonable excuse or it is the appellant who has withdrawn from the society of the respondent without reasonable excuse it may be observed that there is no dispute that the appellant left the house of the respondent on May 27, 1978. The case of the appellant is that she was forced to leave the house of the respondent by the respondent as well as respondent himself maltreated the appellant. The only evidence with regard to the alleged maltreatment is that of the appellant herself. There is not other evidence, oral or documentary, to lend support to the testimony of the appellant. The respondent and his father, as D.W. 2, have denied that the appellant was maltreated by the respondent and the members of respondent's family. The respondent has placed on record the statement (Ex. A-8) made by the appellant to the police officer investigating the complaint lodged by the father of the appellant against the father and elder brother of the respondent, as well as her letters (Ex. A-2 A-3, A-4, A-5, A-6 and A-10>. In her statement (Ex. A-8) made to the police officer who was investigating into the complaint dated November 29, 1977 made by Shri Kanwar Lal, the father of the appellant, appellant has denied that she was being maltreated by the father of the respondent or by elder brother of the respondent and has stated that she was living comfortably in the house of the respondent. That the appellant was quite comfortable in the house of the respondent and was not maltreated is also borne out by the letter Ex. A-5 written by appellant to her father in law. In view of the aforesaid documents it is not possible to accept the statement made by the appellant that she was being maltreated by the respondent and the members of his family and that as a result of said maltreatement she was forced to leave the house of the respondent. Once the aforesaid case of the appellant that she was maltreated by the respondent and the members of his family is found to be false there can be no valid reason for the appellant to remain away from the company of the respondent and the refusal on the part of the appellant to live with the respondent even though respondent has made an unconditional offer to live with the appellant can only mean that the appellant has withdrawn from the society of the respondent without reasonable excuse. The aforesaid inference that appellant has withdrawn from the society of he respondent without reasonable excuse is also borne out by the conduct of the appellant during the course of proceedings in the court of the District judge as well during the pendency of this appeal before this Court. As noticed earlier the respondent in his application dated July 5, 1979 had made an unconditional offer to keep the appellant but the appellant did not accept the said offer on the ground that said offer was not a genuine & bonafide offer and she apprehended danger to her life if she was required to live with the respondent. The appellant repeated this apprehension of danger to her life if she was required to live with the respondent, in her application dated December 14, 1979 for amendment of the petition moved before the District Judge. In his statement, as D.W. 1, the respondent during the course of examination-in-chief stated that he was prepared to keep the appellant with him without any pre condition, and the same offer was repeated by him during the course of cross examination. The appellant, on the other hand, in her statement on examination-in-chief stated that she was willing to live with the respondent provided he created confidence in her that he would not ill-treat her and would not make any demand for dowry. In her statement during the course of cross-examination the appellant again repeated that she was willing to live with respondent provided he comes to her parents' house & assures her & creates confidence that he will not ill treat her and if he could not do so then she was not Willing to go with respondent. During the pendency of this appeal also the respondent on July 12, 1982 had agreed to live with the appellant and although the appellant had also agreed to go with the respondent on July 12, 1982 she did not go with him and did not appear before the Court on the next date i.e, July 13, 1982 and instead of appearing before this Court on July 13, 1982 as directed by the court, affidavits were filed on behalf of the appellant and her parents wherein appellant imposed certain conditions that she was prepared to live which the respondent provided be makes arrangements for separate living for the appellant and keeps his father and friends away so that she may feel assured that respondent would not ill-treat her. It would thus be seen that where as the respondent has unconditionally offered to live with the appellant the appellant has imposed certain conditions for living with the respondent & one of the conditions is that respondent should not illtreat her. lithe case of the appellant about illtreatment by the respondent and members of his family is not accepted then the imposition of the aforesaid condition by the appellant cannot be held to be justified and from the imposition of the said condition the only inference that can be drawn is that it is not the respondent who has withdrawn from the society of the appellant but it is the appellant who has withdrawn from the society of the respondent without reasonable excuse. In the circumstances the District Judge was right in holding that the appellant, in view of her own conduct in withdrawing from the society of the respondent without reasonable cause, is not entitled to seek a decree for restitution of conjugal rights.

21. Another ground given by the District Judge for dismissing the petition for restitution of conjugal rights was that is para 7 of the petition the appellant has made false allegations about the character of the respondent In para 7 of the petition the appellant has alleged that respondent was having illicit relations with other women and was involved with nurses in the hospital and was indulging in improper acts with them The aforesaid averments have been denied by the respondent. The appellant did not adduce any evidence in support of the aforesaid averments which means that the averments contained in para 7 of the petition are without any basis.

22. A false accusation of adultery by the petitioner against the respondent in a petition for restitution of conjugal rights would disentitle the petitioner from seeking relief of restitution of conjugal rights because restitution means preservation of marriage-whereas the accusation of adultery strikes at the very foundation of matrimony. In Sushil Kumari v. Prem Kumar AIR 1976 Del. 341 the husband was seeking the relief of restitution of conjugal rights but in the petition he had made allegations of adultery against the wife and it was held that the husband's petition for restitution of conjugal rights could not be allowed in view of the aforesaid allegations contained in the petition. In that case it has been observed:

the husband's claim is incongruous. He cannot claim that the wife must live with him when he suspects her fidelity. The two claims namely, restitution as well as an accusation of adultery cannot stand side by side. They are incompatible. Whoever has heard of a man claiming restitution against his wife whom he charges with infidelity. A charge of adultery makes the marriage state impossible to be endured. Life itself becomes unendurable and the discharge of marriage duties impossible.

Here also the appellant has alleged infidelity against the respondent. Even though the appellant has failed to produce any evidence in support of the said charge but making of the aforesaid accusation in the petition disentitles the appellant from seeking restitution of conjugal rights. In my opinion, therefore, the District Judge was right in dismissing the petition for restitution of conjugal rights submitted by the appellant on this ground also.

23. No ground is thus made out for interference with the decision of the District Judge, and there is no force in this appeal. The appeal is, therefore, dismissed and judgment and decree passed by the District Judge are affirmed Taking into consideration the facts and circumstances of the case the parties are left to bear their own costs in this appeal.


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