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Judgment
The appellant has filed this appeal under Section 28 of the Hindu Marriage Act, 1955 being aggrieved by the judgment and decree dated 13.11.2014 passed by the Senior Civil Judge, Sirsi in M.C. No.73/2012 allowing the petition filed by the respondent herein under Section 9 of the Hindu Marriage Act.
In her memorandum of appeal the appellant has taken a contention that the respondent herein had not placed any material before the court below except a copy of notice in support of his contention. The court below has given much importance to the fact that PW.1 was not cross examined. It also did not consider the written statements filed by her in the court below. With this she has prayed for setting aside the judgment and decree under appeal. The respondent herein has served but has remained unrepresented.
The matter came up for admission. We have heard the matter in detail, perused the memorandum of appeal and the impugned order.
It is the respondent-wife's appeal. The petitioner-husband had instituted a petition against her in the court below under Section 9 of the Hindu Marriage Act seeking the relief of restitution of conjugal rights. As could be gathered from the available material and more particularly from the impugned order, it was his contention in the court below that he married the present appellant/wife about 14 years back to the date of the institution of the petition in the court below. Out of the wedlock the parties begot two children, a male and a female. The appellant was doing coolie work and taking care of his family including educating his children. It is the contention of the petitioner - husband in the court below that the respondent - wife was frequently visiting her parents' house and staying there for about 10 to 15 days without informing him.
Whenever he used to go to take her back, she used to insult him. She also lodged several false complaints against him in Sirsi Rural Police Station. When the matter stood thus, on 28.4.2002 the respondent wife left the company of the petitioner-husband and taking her cloths and golden ornaments, left for her paternal
home. She left her children with petitioner - husband himself. She did not come back to her matrimonial home despite the request made by the husband. As such, the petitioner - husband got issued a legal notice through his advocate on 25.8.2012 which was served on
her. Inspite of the same she did not return, thus, causing lot of inconvenience to the petitioner - husband in looking after their children and their welfare. With this he has prayed for issuing a direction to the respondent - wife to join him under the relief of restitution of conjugal rights.
The respondent - wife in response to the notice served upon her appeared in the court below through her counsel and filed her statement of objections. In her statement of objection though she has admitted her marital relationship with the petitioner
- husband and begetting two children out of wedlock, but she denied all further allegations made against her about she deserting her husband. On the contrary, she alleged that petitioner -husband was addicted to bad habits and was ill-treating her under the influence of alcohol.
In the court below the petitioner - husband got himself examined as PW.1 and got produced office copy of the legal notice dated 4.3.2014 said to have been sent to the respondent - wife and got it marked as EX.P1. The respondent - wife neither chose to cross examine PW.1 nor entered the witness box and nor even examined any witnesses from her side. The court below by its impugned judgment and decree dated 13.11.2014 allowed the petition granting decree of restitution of conjugal rights in favor of petitioner - husband.
The learned counsel for he appellant in his argument submitted that the wife was not given proper opportunity to cross examine PW.1 and to put forth her case, as such, the impugned order deserves to be set aside and the matter requires to be remanded.
It is not in dispute that the respondent - wife in the court below was given due notice of the petition as such she appeared through her counsel and filed her statement of objections. It means she was aware of the proceedings and its seriousness. The court below has specifically recorded in its judgment that the respondent
- wife therein neither cross examined the petitioner nor chose to step into the witness box to prove her defence.
This goes to show that she was given reasonable opportunity, but she did not made use of the same.
Even in her present memorandum of appeal also the appellant - wife has not shown any reason for she not cross examining PW.1 or for she not leading evidence from her side. As such, the mere say of learned counsel that she was not given an appropriate opportunity cannot be accepted at its facial value. On the other hand from a reading of the impugned order which has also recorded the contents of statement of objections filed by the respondent - wife before it, go to show that except denying the allegations levelled against her by the husband in his petition, the wife has not produced any material justifying her staying away from the marital home. On the other hand she in her present appeal has herself stated that her husband was objecting her to visit her marital home, which can be inferred as corroborating the allegation of her husband that she was frequently visiting her parents' house and stay there. She has also not denied either in her statement of objection or in this Court that the children born out of wedlock to them continued to stay with her husband. This fact shows the necessity of directing her to join back her matrimonial home in the best interest of her family. More over, the parties are of young age.
As on the date of the institution of petition the husband is said to be of 34 years and wife was said to be of 28 years old. As such, it is the institution i.e., their family and the interest of the family and more particularly, the two young children is to be considered. As such, the finding of the Tribunal below cannot be found fault with.
Learned counsel for the appellant in his argument submitted one more point that the wife had withdrawn the complaint lodged by her with the Sirsi Rural Police Station. If that were to be the case, it can be inferred that her allegation against her husband may not be of very serious in nature. However, if at all she has got any valid reasons to stay away from her husband, she had separate remedy for the same including a judicial separation. Thus, she cannot unilaterally leave the company of her husband and children and stay separately with her parents with no justifiable cause or reasons for the same. As such, there exists no point requiring to be considered by admitting this matter. Thus, there are no grounds made out to admit this matter.
Accordingly, we proceed to pass the following
order.
ORDER
The appeal stands dismissed at the stage of
admission. However, it is made clear that the present appellant - wife is at liberty to pursue the legal remedies available to her in accordance with law. In such an event the observation made in this appeal would not come in the way of disposal of that/those matter in accordance with law.