Nirmala Devi vs Pritam Singh

M.L. Singhal, J.—This letters patent appeal is directed against the judgment dated November 2, 1987 passed by learned Single Judge of that Court dismissing F.A.O. No.l4.Mof 1987.

The following facts have given rise to this appeal:

Pritam Singh (husband) instituted petition u/s 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights against-Smt; Nirmala Devi (wife). They were married at Village Dher Tehsil Anand pur Sahib, District Ropar, on 30.11.1972. After marriage, they cohabited at the house of the husband. No child was, however, born to them. About three years ago, the wife's father came to the house of the husband and she was taken to her parental hope at village her saying that she would be sent back after "Karva" and Deepawali festivals were over. She took with her all the gold and silver or anments i.e. Gajras, ear rings, etc. and clothes all worth more than Rs. 30,000/- saying that she would be using these ornaments and clothes on the occasion of festivals. She did not return to the matrimonial home after the festivals were over. He went to her parents'' house thrice for bringing her back to the matrimonial home; On all these bceasions, her father sent him back on one pretext or the other without his wife. She was not willing the turri Up to the matrimonial home and her father too was not willing to send her to the matrimonial home. They took the matter to Panchayat comprising common relatives and other respectables. They all requested her father to send her back to the matrimonial home but to no effect. According to the husband, she withdrew from his society without reasonable cause or excuse despite service. Of registered notice dated 11.10.1985 on her. She did hot turn Up to the matrimonial home. Instead of returning to the matrimonial home, she furhised reply to the said notice containing scandalous accusations.

The wife contested this petition urging that she cohabited with the petitioner as a dutiful and obedient wife. Unfortunately, no child was born to them-The husband's family is joint family. He, his parents, uncle Pancham Dass were not satisfied with the dowry brought by her in the marriage. After some time of the marriage, the petitioner and his parents started taunting her sarcastically that she was BANJH (barren) and could not conceive. He did not spare even her parents. He made sarcastical insinuations, against her parents. He and his parents started treating her with cruelty that she was Banjh (barren); that she could not conceive nor she brought adequate dowry. On many occasions, she was beaten. Eventually in July, 1982 she was turned out of matrimonial home with wearing apparel only on her. They retained all the ornaments and dowry given to her by her parents at the time of marriage in pursuance of a deep rooted conspiracy. She was warned not to turn up to the matrimonial home and if she turned up to the matrimonial home, she would be done away with. She has been puttting up with her parents as a deserted wife ever since she was turned out of the matrimonial home. It was denied that he (husband) brought any Panchayat to her father for her induction into the matrimonial home. The boot is rather on the other leg. Her father sought the intervention of the Panchayat for her rehabilitation in the matrimonial home but to no effect.

On the pleadings of the parties, the following issues were framed by the learned Trial Court:

(1) Whether the respondent has withdrawn from the society of the petitioner ? OPP

(2) Whether the respondent has withdrawn form the society of the petitioner for a reasonable and just excuse ? OPR

(3) Whether the petitioner is entitled to the restitution of conjugal rights ? OPP

(4) Whether the petition is not maintainable in the present form ? OPR

(5) Relief.

At the conclusion of the trial of this petition, the Subordinate Judge 1st Class, Anandpur Sahib pronounced decree in favour of the husband for restitution of conjugal rights against the wife vide order dated 12.11.1986 in view of his finding that the wife has withdrawn from the society of the husband without any reasonable cause or excuse.

The wife came up in appeal to this Court, namely F.A.O. No. 14-M of 1987. Learned Single Judge vide order dated November 2,1987 dismissed the appeal of the wife.

The unsuccessful wife did not lose heart and knocked the door of this Court through this letters patent appeal.

We have heard learned Counsel for the parties and have gone through the record.

The marriage of Nirmala Devi-appellant took place with Pritam Singh on 30.11.1972. They cohabited for about 10 years. During this long period of cohabitation, the wife could not bear any child for the husband and kindle flame of light in the matrimonial home. There is no dispute that cohabitation ceased between them in or about July, 1982 and thereafter cohabitation remained unresumed. According to the husband, the wife left the matrimonial home with her father to her parental home with all the ornaments and valuable clothes saying that she would return after celebrating Karva chauth, and Deepawali. She took these ornaments and clothes saying that she would be requiring those ornaments and clothes on the occasion of festivals. According to the wife, she did not leave the matrimonial home. In fact she was taunted all the while by the husband and his family that she was Banjh (barren) unable to conceive all these years. Treating her with cruelty that she was a Banjh (barren) unable to conceive all these years became routine with them so that she felt compelled to leave the matrimonial home. She was given beatings many times. According to the wife, the husband wanted to get rid of her as she had not been able to bear any child for him and kindle the flame of light in the matrimonial home. Her father's persuation through the intervention of the Panchayat for her induction into the matrimonial home met with dejection. She was mercilessly beaten in July, 1982 and thrown out of the matrimonial home. In this arena of discord between the parties which is not at all wide, we have to consider whether the husband's her wife's version fits in with the probabilities of the case. The husband put himself into the witness box. Besides, he put his uncle Pancham Dass in the witness box. He did not examine any member of the Panchayat alleged to have been taken by him to the house of his in-laws for his wife's induction into the matrimonial home. Pancham Dass PW 2 stated that he took Rakha Ram, Daulat Ram and Bawa Ram to the house of in-laws of Pritam Singh for persuading Nirmala's father to send her to the matrimonial home. Nirmala Devi was however not sent to the matrimonial home. Her father refused point blank to send her to the matrimonial home. He gave no reason for not sending her to the matrimonial home. The statement of Pancham Dass PW 2 is not natural so far as this aspect is concerned. Her father has stated that Panchayat came to him for Nirmala Devi's induction into the matrimonial home. He took Panchayat to Pritam Singh and Pancham Dass. That Panchayat consisted of Gurdial Singh Sarpanch, Bachni Panch and Ajmer Singh. They requested Pancham Dass to provid room to Nirmala Devi in the matrimonial home. They refused to accept his request saying that they did not need Nirmala Devi. Her father stated that he could not make out why they were not needing Nirmala Devi in the matrimonial home. Ajmer Singh RW-4 stated that Nirmala Devi's father wantedher induction in the matrimonial home. Nirmala Devi also wanted her induction in the matrimonial home. Gurdial Singh-Sarpanch RW 3 stated that Pancham Dass told their Panchayat that Nirmala Devi was of no use to the family as she had not been able to bear any child though they cohabited for about 10 years. He stated that Pancham Dass told them categorically that they were unable to induct her into the matrimonial home. Babu Ram RW-2 who is Nirmala Devi's father stated that they went to the house of Pritam Singh for induction of Nirmala Devi into the matrimonial home.

Wife has not been able to bear any child for the husband though she cohabited with him for 10 years. Wife was got treated from Sadhus and Mahatmas so that with their blessings, she conceived and gave birth to a child. Pritam Singh and his uncle Pancham Dass are joint. Pancham Dass is be-all so far as Pritam Singh is concerned. He is putting up with him. His mother is also putting up with him and has born him three, sons and three daughters. Pritam Singh belongs to orthodox segment of the society. How could he reconcile with his wife who is unable to bear a child for him in cohabitation of 10 years ? To us, it appears that Pritam Singh and Pancham Dass began thinking Nirmala Devi a burden on them. Why should they feed, clothe and look after Nirmala Devi when she was of no use to the family became a question mark for them. On 5.5.1986 i.e. when Pritam Sihgh's statement was recorded, he gave his age as 28 years. Pritam Singh was thus in age where he could be passed off in re-marriage. To us, it appears that Pancham Dass wanted Pritam Singh to forsake his wife so that he re-married him for kindling the flame of light in the family. They considered that Nirmala Devi was sheer burden on their family and wanted to get rid of her.

Faced with this position, learned Counsel for the respondent submitted that Nirmala Devi was putting forth this pre-condition for her agreeing to resume cohabitation in the matrimonial home if 1% kilas of land was parted in her favour. It is true that Nirmala Devi's father wanted V/i kilas of land to be given to Nirmala Devi. We do not see anything unjust in this demand of Nirmala Devi. Nirmala Devi was being constantly taunted and ill-treated that she was a Banjh (barren) unable to bear any child. Nirmala Devi knew that she was not capable of bearing any child and she was a burden on the family to be thrown out of the matrimonial home, she required some financial security. In our opinion asking for some security against desertion/destitution was not unjust on the part of Nirmala Devi.

It is a case of husband's deserting the wife. The petition for restitution of conjugal rights filed by the husband appears to be a ploy for divorce urging that there has not been resumption of cohabitation for a period of one year after the decree of restitution of conjugal rights. The Courts are not automations to accept whatever is projected before them without micro-scopic examination of the truth or otherwise of the projection before them.

For the reasons given above, we find that there was absolutely no justification on the part of learned Single Judge to have maintained the decree for restitution of conjugal rights granted to the husband against the wife by the learned Subordinate Sub Judge, 1st Class, Anandpur Sahib. Petit ion u/s 9 of H.M. Act filed by Pritam Singh-husband against Smt. Nirmala Devi-wife is dismissed.

So this appeal succeeds and is allowed with costs. Costs Rs. 2,000/-.