Om Pati vs Kartar Singh

This order shall dispose of two connected appeals filed by Smt. Om Pati, against the judgments dated 15-7-1967 of Shri O. P. Sharma, Additional District Judge, Rohtak in two cross matrimonial petitions under the Hindu Marriage Act, 1955, between the appellant and her husband, Shri Kartar Singh, respondent. Proceedings had been consolidated with the consent of the parties and the two cases had been disposed of by one detailed judgment of the trial Court.

A marriage between the parties had been solemnised according to Hindu rites at the house of the bride''s parents in village Kultana, Tehsil Jhajjar of Rohtak district on 15-6-1964. The bride''s doll had been taken to the groom''s house in village Daboda and the two had started living together as husband and wife soon after the marriage. It is the common ground that they could not live together happily for very long and the parties had finally separated within about two years of the marriage. According to the petitioner she had gone to her husband''s house 3 times during this period and had lived therein all for a total duration of a month and a half in short spells.

It was the petitioner''s case that her husband and his parents were dissatisfied over the insufficient dowry that her parents had given her at the time of the marriage and that Kartar Singh respondent had last left her at her parents'''' house in village Kultana somewhere in the year 1966, saying that is she wanted to live with him, she and her parents should satisfy the requirements of his parents and that she should bring more money to meet their demands.

Om Pati was the first to file a petition u/s 9 of the Hindu Marriage Act, 1955, for restitution of conjugal rights against her husband in May, 1967, alleging that the respondent''s parents had arranged another marriage for him and that the respondent had withdrawn from the society of the petitioner without reasonable cause with effect from August, 1966. Within a month of the filing of this petition, the respondent filed a cross-petition u/s 10 of the Act for judicial separation, on the ground that his wife, Om Pati, petitioner, had developed illicit intimacy with Sarvshri Ram Phal and Chander of village Daboda and had been seen having sexual intercourse with them a number of times by Kartar Singh himself and some other persons who have been named by him in his petition u/s 10 of the Act. it had been denied by Kartar Singh respondent in his written statement filed in reply to his wife''s petition u/s 9 of the Act that he had ever proposed or intended a marriage with any other woman.

One Kamla Devi aged 16 years and her father Dharam Singh appeared on 16-6-1967, in answer to the notices issued by the trial Court and stated that a marriage had been fixed between Kamla Devi and Kartar Singh but as they had come to know for the first time that Kartar Singh was already married., they had dropped the idea of going through with that marriage. Kartar Singh''s counsel made a statement that his client was not going to marry Kamla Devi and Kartar Singh appeared personally the next day and denied that any marriage between him and Kamla Devi had been fixed as alleged. He stated that he had no intention of marrying any other woman in the lifetime of Om Pati or as long as this marriage was legally subsisting. This had put an end to one of the two grounds pleaded by Om Pati in her petition for restitution of conjugal rights.

As regards the other ground that Kartar Sing respondent had withdrawn from Om Pati''s society without reasonable cause, it was found that the evidence examined by Om Pati about the demand made by her husband or his parents for more money or dowry went beyond the pleadings. It was also found that there was no reliable proof that Om Pati or her parents had made any bona fide efforts, by taking Panchayats or otherwise, to get the petitioner rehabilitated in her husband''s house. On the other hand the learned trial Judge held on the basis of oral testimony of some witnesses belonging to the respondent''s village, that Om Pati was leading an unchastely life in adultery with Sarvshri Ram Phal and Chander and that she had actually been seen having sexual intercourse with them a number of times by about half a dozen persons. Ram Phal is a cousin of the respondent and was described as Om Pati''s Dewar by Munshi Ram R. W. 4. The relationship could have led to some informality between the two but I find it difficult to believe that they had started cohabiting with doors open for people enmasse to surprise them in the act. It was unfortunate that oral and interested evidence has carried conviction with the learned trial Judge for holding that a lady had been guilty of acts of adultery. If inherently weak and unnatural evidence of this type was to be relied upon by courts, no fair name, reputation, freedom or property etc., would have any sanctity. The trial Court may have had the advantage of seeing the demeanour of these witnesses, all hailing from the respondent''s village, but the evidence is so unnatural that I have no hesitation in disbelieving it.

As the findings of fact of the learned trial Judge are being disturbed by me, I would analyse in detail the evidence relied upon by him. according to this evidence the petitioner was seen in compromising positions or having adulterous sexual intercourse on no less than 4 occasions. The dates and places have not been given in the petition filed by Kartar Sing respondent or in his written statement filed in reply to the wife''s petition. It would be better if these four incidents are dealt with in their chronological order. Kartar Singh respondent is the only witness about the first incident which is said to have taken place about 11 months after the marriage. Kartar sing claims to have seen his wife with his own eyes having sexual intercourse with Chander Singh in a field. His reaction to this incident may appear to have been too docile and peaceful and it cannot be argued that he had so got used to his wife''s unchaste way of living that he quietly withdrew leaving the two paramours free to enjoy.

The other three acts of adultery are said to have taken place later on. The second incident is said to have taken place in the sugarcane field. Jamuna Ram Labardar, R. W. 2 and Lakhi Ram R. W 5 are the two witnesses about this incident and according to the former it had taken place about two years before these two witnesses appeared in court. Here again Chander was said to be having sexual intercourse with Om Pati in a field and it was possible for two passers-by to see the very act being performed. it is rather hard to believe that two sane persons would get down to this type of enjoyment without any attempt at secrecy or seclusion.

Evidence about the third incident which is said to have taken place inside a Baithak on the Holi Day in the Spring of 1966, is all the more incredible. There are three witnesses namely, Hari Singh, R. W. 1 Munshi Ram, R. W. 4 and Phullu, R. W. 6, who claims to have seen Ram Phal committing sexual intercourse with Om Pati behind the seclusion of the four walls of a room. Holi celebrations would generally be over by afternoon but I can accept the argument of the learned Councel for the respondent that this was a different type of madness which knew no time or place. I cannot, however, believe that two persons out to have such an enjoyment, would leave the doors open for any one to surprise them in the act.

The fourth incident is said to have taken place in the same Baithak in or about May, 1966, and Mange R. W. 3 is the only witness of this incident. He is, however, more sparing to the paramours and was less of a peeping Tom. I have no hesitation in rejecting this unnatural evince of the respondent or the argument of his counsel that the explanation of the wife having been disbelieved, the reason given by the husband for the parties living separate should be accepted as correct. This is too broad a proposition to be accepted and if the learned trial Judge had looked at the evidence of both the parties with the same benevolence he might have found much more natural and reliable evidence in support of the petitioner''s version. If the proposed second marriage of the respondent which has been mentioned in the pleadings of the wife had fallen through and the greedy demands of the husband and his parents had not been mentioned in the wife''s petition for restitution of conjugal rights, we cannot ignore her averment that her husband had withdrawn from her society without any reasonable cause.

As the evidence of both the parties has been found to be unsatisfactory and unreliable, the question of onus of proof in a case of restitution of conjugal rights may seem to assume importance. The petitioner had adopted the language of the stature for stating her cause of action for restitution of conjugal rights. The absence of a reasonable cause is something negative which cannot be proved by the examination of any number of witnesses. The existence of a thing would be known only to a limited number of persons and there can be hundreds of persons who could come forward to state truthfully that the thing did not exist as far as their personal knowledge was concerned. The party pleading the existence of a certain fact has, therefore, to prove it by positive evidence. In a case of restitution of conjugal rights, the petitioner has only to prove the existence of a marriage and as soon as that marriage has been proved by positive evidence or by the admission of the respondent, it would be for the latter to prove by positive evidence that there was justification for his or her withdrawing from the society of the petitioner. Marriage is a contract which imposes certain mutual and reciprocal obligations on both the parties. It is an institution for the carrying on of the society and the race and can succeed only if the parties live together to discharge their marital obligations. Once the marriage has been proved the party who has withdrawn from the society of the other spouse has to prove the justification for his failure to discharge the marital obligations. In the present case nothing more required of Om Pati than her averment that her husband had withdraw from her society without sufficient cause. The marriage was admitted by Kartar Singh respondent and it as for him to prove that he was justified in withdrawing from his wife''s society. In view of the unsatisfactory evidence examined by both the parties, the matter would be determined by the onus of proof which has not been discharged by the respondent. Unchastely or adultery of the wife having not been proved by any reliable evidence, she may appear entitled to a decree for restitution of conjugal right''s.

For reasons given above, I accept both the appeals filed by Smt. Om Pati with the result that her petition for restitution of conjugal rights is decreed while Kartar Singh respondent''s petition for judicial separation is dismissed. The respondent shall pay appellant''s costs in both the cases throughout.

Appeals accepted.