Kharak Singh Dasila vs Smt. Prema Dasila

This appeal has its genesis from the proceedings initiated by the appellant-husband herein on the rejection of his application under Section 9 of Hindu Marriage Act, by virtue of which, his suit registered as Suit No.126 of 2009, "Kharak Singh Dasila vs. Smt. Prema Dasila," has been dismissed.

According to the plaint, as filed by the appellant before the Family Court, Nainital, he stated in his plaint that the marriage between the parties to the appeal was solemnized in 1990, in accordance with the Hindu customs and rituals.

As a result of the marriage and out of the relationship between them two children were born, a daughter and a son who were 16 and 13 years respectively, in the year 2009 and 2010. His case before the Court was that initial stage, the matrimonial relation was too conducive both loved and regarded each other, but later the respondent (wife) Smt. Prema, in 1996, without their being any

justification and reason had went to her parents place along with the children and she continues to reside with her parents, sulkily denied to live with appellant, this will amount to be desertion and cruelty.

In his application under Section 9 the appellant stated, that since he being a member of the armed forces and at the relevant time of filing of the application under Section 9, he was posted in Puna, ever since then she is residing with her mother without joining the appellant to discharge her matrimonial obligations. He further stated that he made all efforts to bring her back, visited his in-laws, but she declined to join the appellant and rather the sister-in-law and brother-in-law of the respondent misbehaved with him.

To malign his character she has also lodged frivolous complaints before the Superior Military Officials, just to pile up problems for him and to engage him in multifarious litigation including one contemplated under Army''s Act.

On scrutiny of the paper book, the application for restitution of conjugal rights is shown to have been instituted on 16.09.2009, based on a pleading as raised in para 5 and 6 of the application that, since 1996 the respondent is residing separately, the steps which the appellant has pleaded to have been taken for the first time to bring back his wife is the notice sent on 06.05.2009. The period which has engulfed from the date of living separately and the date of institution of the Section 9 proceedings itself is sufficient to show that the appellant never had any serious intention to stay with his wife and discharge his matrimonial responsibilities, and the application under Section 9 was an afterthought.

Looking to the age of the children and the period of filing of Section 9 application, there is no justification to allow the same at this stage.

Appellant also pleaded that he was called upon by the respondent to her parents place under the pretext of permitting him to meet his children and when he visited the place he was physically assaulted and was taken into custody with the help of the police. Apparently from record, it is established and pleaded in para 10 of the plaint that the respondent (wife) through her advocate had served a notice on 06.05.2009, asking him to join her and live at her parents place. Under the aforesaid pretext according to the appellant that, since the respondent is not discharging her matrimonial obligation, he sought a decree for restitution of conjugal rights by invoking Section 9 of the Hindu Marriage Act.

The proceedings under Section 9, which was registered as Original Suit No.126 of 2009. The same contested by the respondent by filing her written statement paper no.12 ka, wherein she stated that being husband, he has failed to discharge his responsibility, as a father during the period when the respondent was under pregnancy and during that critical period, she has to face all responsibility herself, without their being any assistance from the appellant. In her objection she also stated that the appellant-husband failed to maintain the balance of relationship of love, care and affection, inter see between the parents and her, which too created a psychological stress on the respondent. Admittedly being the father he has not performed his responsibilities.

On exchange of pleadings, the learned Family Court framed four issues and after providing due and adequate opportunity

and considering the oral testimony of the appellant as PW-1, proceeded to dismiss the suit, for the instant appeal only two issues which were taken into consideration being issue no.2 and 3 to the following effect:-

...................... 2. Whether the defendant had derelicted in performance of her duties as wife? 3. Whether there is a sufficient reason for the defendant to remain separate from the plaintiff? 4. .......................

For the instant case, by way of the present appeal issue no.2 and 3, which has been considered by the learned Family Court is only vital to justify as to whether under a given set of circumstances Section 9 would be tenable or not. The learned Family Court while deciding issue no.1 and 2 almost reiterated the pleadings of the respective parties. The Court held that the respondent (wife) has been able to established that there were enough plausible reasons for her to live separately. Admittedly according to the plaintiff himself, it is not his case either pleaded or established that he made any efforts to maintain his children and respondent (wife) to meet day to day expenses of their up bringing.

It was also rightly considered by the Court below that when there was a financial crunch, she was forced upon to file an application before the Superior Officials of the armed forces with whom the appellant was working, which was considered by the Superior Authorities of the armed forces, on which the directions was issued, by the officials, but since the intention of the appellant was not fair enough, and to overcome the effect of the orders the appellant quit the job, so that the orders passed by the Army Authorities may not be enforced. The respondent (wife) stated that due to pathetic attitude of the husband, she was forced to work in a primary school and whatsoever meager income she used to receive, she invested the same in the upbringing of her children by giving them admission in public school, she stated that why now! After such a long time since 1996, when she has made herself viable to stand financially and emotionally in the society, now there is no necessity for her to join the appellant. The learned Family Court, hence held that there is no reason as to why there should be a restitution of matrimony between the parties and, hence rejected the application.

The appellant before the Court below in his affidavit paper no.16 ka has stated that the respondent (wife) has left the children at the residence of their grandmother (nani) and is working at a remote place in Vetalghat, in a primary school, serving in a remote area by the respondent, it was a necessity for her to have a source of earning to maintain the children, the responsibility of home which has been denying to be performed by the appellant merely because the wife is working in a primary school at a distant place, leaving the children under the care of their grandmother (nani) will not be a reason for allowing Section 9 Application.

The learned Trial Court while recording its finding on the testimony of the respondent, who had appeared in the witness box as DW-1, had stated that ever since the time of her marriage with the appellant, after a coupled of days, she is residing in a parents place as the appellant had expressed no responsibility to take care of her and his children. The Court held that, since with the passage of time, the wife has settled herself and has stood on her own legs by working as a primary school teacher. At this stage, the Court rightly

held that there was no necessity to allow Section 9 application for restitution of conjugal rights.

Looking to the period of separation, looking to the insensitivity of the husband towards his family and looking to the fact that the respondent has maintained the family single handedly, this Court feels there is no justification to allow Section 9 for restoring the matrimonial relationship which was solemnized in 1990, which with the passage of time has lost its efficacy, as it seems that the appellant has developed a habit and could live separately easily. Thus, the appeal fails and is dismissed.

No order as to costs.