Smt. Raj Bala @ Rajo vs Devi Parkash

Sarojnei Saksena, J.—Appellant-wife has filed this appeal u/s 28 of the Hindu Marriage Act (for short, the Act).

Uncontroverted facts are that the appellant was marriage to the husband in April, 1982 at Pehowa. In January/February, 1986, she gave birth to a son, Deepak In July, 1986, the appellant went to her parental home for Chuchhak purposes.

The respondent-petitioner''s case was that the appellant went to her parental home in July, 1986 for Chuchhak purposes but thereafter she never came back to her matrimonial home though he made many efforts to bring her back.

The appellant contended that the husband used to beat her when under intoxication. He wanted her to share her bed with outsiders. When she refused, she was turned out of the matrimonial home in November, 1986. She is still prepared to live with her husband provided he behaves properly. He never made any effort to rehabilitate her. Conversely, her parents convened panchayat to persuade him to leave his bad habits and to rehabilitate her. She has also filed a petition u/s 125 Cr.P.C.

The parties examined themselves. The Trial Court, believing the respondent- petitioner''s evidence, allowed his petition u/s 9 of the Act and passed a decree for restitution of conjugal rights against the appellant.

None appeared for the parties.

It is alleged on behalf of the appellant that her husband''s behaviour was not proper with her. She was always maltreated by him. He wanted to earn money illegally by forcing her to lead an immoral life. He used to bring persons who were dead-drunk and wanted her to prepare food for them and to treat them well. When she declined, she was beaten by him. Under these circumstances, she came to her parental home. If he maintains her properly in the matrimonial home, she is willing to go back. She has denied that he ever convened any panchayat or made any effort to rehabilitate her. Her complaint is that he is a liquor-addict and a gambler. The respondent-petitioner has simply stated that after the birth of the son, she went to her parental home for Chuchhak purposes but thereafter she never came back though he went there to take her back. His another complaint is that her parents demanded Rs. 5,000/- from him. On this count, she is not joining him. He is willing to rehabilitate her. It is noted that in the cross-examination, the petitioner-husband has stated that thrice he went to her parental home and she never declined to go with him. Thus, even the petitioner-husband has admitted that she was always ready and willing to come with him. Despite this, the learned Lower Court has allowed the respondent''s petition u/s 9 of the Act.

I have gone through the statement of both the witnesses. Petitioner- husband could not assign any plausible reason for appellant-wife not joining him. The only contention is that her parents demanded Rs. 5,000/- from him which can hardly be believed. In the cross-examination, he has unequivocally admitted that thrice he went to take her and she never refused to come with him. The appellant-wife has given in details the circumstances under which she went to her parental home. According to her, the petitioner-husband is a drunkard and a gambler by habit. He has sold her ornaments also. He wants to earn money by selling her flesh. He wants her to lead an immoral life. For that purpose, on few occasions, he brought certain persons with him who were also drunk. When she declined to accede to his wishes, she was beaten by him. Under these circumstances, she is forced to reside with her parents. Nothing is brought out in cross- examination to discredit her sworn testimony.

I find that the Trial Court has not marshalled the evidence properly. Fault lies with the husband-petitioner and not with the wife-respondent for this estrangement. Despite this circumstance, the appellant is willing to reside in her matrimonial home provided he behaves properly. Even the petitioner-husband has admitted that she never refused to come with him. Under these circumstances, the petitioner-husband is not entitled to get a decree for restitution of conjugal rights.

Accordingly, I find that the petitioner-respondent is not entitled to get a decree for restitution of conjugal rights. The appeal is hereby allowed. The impugned judgment and decree are set aside. No order as to costs.