Pooja Kushawah vs Preetam Kushawah

S.K. Palo, J.—Heard.

Feeling aggrieved by the judgment dated 28/06/2005 passed by the learned Additional Sessions Judge, Shivpuri in Civil Suit No. 45A/2004 Preetam Kushawah Vs. Smt. Pooja Kushawah, by which the application u/s 9 of Hindu Marriage Act, 1955 filed by the respondent, has been allowed, the non-applicant/appellant has filed this appeal u/s 28 of the Hindu Marriage Act, 1955.

It is not disputed that the appellant and respondent are spouses. The appellant - non-applicant is residing with her mother.

In short the proceedings before the trial Court was that the respondent - husband filed an application u/s 9 of Hindu Marriage Act, 1955 on 19.10.2004 praying for a decree of restitution of conjugal rights. The respondent claimed that his marriage was performed with non-applicant/appellant four years prior to filing of this application. They lived peacefully as husband and wife for one and half years. The appellant-non-applicant did not want to live with him at her matrimonial home. She pressurized the respondent to live with her at Shivpuri. The applicant - respondent being a poor farmer could not acceded to. The appellant-non-applicant left her matrimonial home and started living at her maternal home.

The non-applicant wife rebutted all these allegations and contended that the applicant is in the habit of drinking liquor and used to assault her. Therefore, it was very difficulty in her part to live with her husband.

Learned trial Court after affording opportunities to both parties to adduce their evidence, pronounced the impugned judgment and allowed the application and directed the non-applicant to resume her marital life with the applicant husband within a period of one month.

We perused the record of the trial Court and considered the evidence.

The appellant wife has filed this appeal on several grounds and prayed that the impugned judgment be set aside.

The applicant husband examined himself, his father Lalaram, Ramjilal and Kailash, whereas the wife non-applicant has examined herself and her maid servant Leelabai and one Rajendra Tiwari, the neighbor. It is not disputed that the non-applicant wife is residing separately, but she has assigned that for the habits of drinking and quarreling with the non-applicant she has been constrained to live separately from her husband.

The burden of prove lied on her that she had reasonable excuses for withdrawing from the company of her husband. But she failed to do so.

When the case has to be decided on the basis of "Oath Vs. Oath", the Court has to decide the matter with preponderance of probability. The evidence adduced by both the parties has been reasonably assessed by the trial Court and the trial Court had given the finding that the applicant respondent is labourer in a factory was earning Rs. 5000/- per month. The non-applicant wife utterly failed to prove the allegations that the applicant husband was in the habit of drinking liquor and treated her with cruelty. The applicant''s witnesses Lalaram, Ramjilal and Kailash were not suggested in their cross examination about this allegation. That being so, the finding that the non-applicant/appellant lived separately without any sufficient cause has been proved by the trial Court. On perusal of the evidence, we are in agreement with the finding of the trial Court, therefore, we deem it proper not to interfere with the findings so recorded by trial Court in the impugned judgment.

Consequently, this appeal fails and is hereby dismissed.