Punjab-Haryana High Court
Talwinderjit Singh Gili vs Sarabjit Kaur on 3 November, 2014
Author: Ajay Kumar Mittal
Bench: Ajay Kumar Mittal, Raj Mohan Singh
FAO -M-394-2014 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO No.M-394 of 2014 (O&M)
Date of decision: 03.11.2014
Tawinderjit Singh
......Appellant
Vs.
Sarabjit Kaur
.....Respondent
CORAM: HON'BLE MR. JUSTICE AJAY KUMAR MITTAL
HON'BLE MR. JUSTICE RAJ MOHAN SINGH
Present: Mr. Kulbir Singh Sekhon, Advocate for the appellant.
Ajay Kumar Mittal,J.
1. This appeal has been preferred by the appellant - husband against the judgment and decree dated 28.7.2014 passed by the Civil Judge (Senior Division) Moga, whereby the petition filed by him under Section 9 of the Hindu Marriage Act, 1955 (in short, "the Act") for restitution of conjugal rights has been dismissed.
2. A few facts relevant for the decision of the controversy involved as narrated in the appeal may be noticed. The marriage between the parties was solemnized on 4.12.1998 at Jagraon as per Sikh rites i.e. by Anand karaj ceremony. Neither dowry nor lunch was offered by parents of the respondent. Only five members accompanied the appellant in barat. Not even single penny was spent by the parents of the respondent nor any gold article was given by them. After the marriage, the appellant and the respondent lived together and cohabited as husband and wife but no issue GURBAX SINGH 2014.11.18 12:00 I attest to the accuracy and integrity of this document High Court Chandigarh FAO -M-394-2014 2 was born. The respondent went to meet her parents on 5.3.2002 but did not come back inspite of efforts made by the appellant-husband. The appellant is serving in Border Security Force and is unable to keep the respondent at the place of his posting as per rules. The respondent was pressurizing him to resign from service and she was not ready to live in the house of the appellant with his parents. The appellant filed petition under Section 9 of the Act for restitution of conjugal rights against the respondent. Upon notice, the respondent appeared and filed reply controverting the averments made in the petition. The trial court after considering the evidence on record dismissed the petition vide order dated 28.7.2014 impugned herein. Hence the instant appeal.
3. We have heard learned counsel for the appellant and perused the record.
4. On the pleadings of the parties, the trial court framed the following issues:-
"1) Whether respondent had withdrawn from the society of petitioner for a just excuse? OPR.
2) Whether petitioner is entitled to restitution of conjugal rights? OPA.
3) Whether this petition is counter blast to the petition under Section 125 Cr.P.C. filed by the respondent? If so, its effect? OPA
4) Relief."
It has been categorically recorded by the trial court that there is nothing on record to show any effort made by the appellant after the filing of the petition under Section 9 of the Act to rehabilitate the respondent in case he GURBAX SINGH really intended to. The respondent had filed petition under Section 125 2014.11.18 12:00 I attest to the accuracy and integrity of this document High Court Chandigarh FAO -M-394-2014 3 Cr.P.C on 2.8.2005 and immediately thereafter, the appellant filed petition under Section 9 of the Act in the month of November 2005 i.e. after a period of only three months. The respondent wife had always been ready to join the company of the appellant but the appellant did not take any step to rehabilitate her. It has been proved on record that the petition filed under section 9 of the Act by the appellant was a counter blast to the petition under Section 125 Cr.P.C filed by the respondent wife. In view of the compelling circumstances proved on record, the respondent had to withdraw from the society of the appellant after being maltreated by him and his parents. After considering the entire evidence on record, the petition under Section 9 of the Act had been dismissed by the trial court. The relevant finding recorded by the trial court reads thus:-
"13. Respondent admittedly is the wife of the petitioner who is now residing separately from the petitioner at the house of her parents since June, 2002. Petitioner is serving in the Border Security Force (BSF) posted at Sriganganagar. It is the case of the petitioner that respondent is not ready to live at the house of petitioner and wants petitioner to take her along which he is unable to take because of the rules of BSF. Respondent has denied that she ever pressurized the petitioner to join his company only if he rehabilitated her at his place of posting. Petitioner has come forward filing the present petition in November 2005 i.e. after three years of the alleged separation of respondent from petitioner. Respondent is willing to join the company of the petitioner. There is nothing on record to show any effort made by petitioner all these years after the filing of the present petition to rehabilitate the respondent in case he really intended to rehabilitate respondent in the matrimonial home.GURBAX SINGH 2014.11.18 12:00 I attest to the accuracy and integrity of this document High Court Chandigarh FAO -M-394-2014 4
It is on record proved that respondent had filed a petition under Section 125 Cr.P.C. and the said petition was filed on 2.08.2005 as evident from the certified copy of the order dated 11.06.2012 Ex.PX passed by the Court of the then Ld.Sub Divisional Judicial Magistrate, Jagraon. Soon after the filing of the petition under Section 125 Cr.P.C. present petition under Section 9 of Hindu Marriage Act was filed in the month of November, 2005 i.e. barely, after the period of three months of the filing of the petition under Section 125 Cr.P.C. Respondent has categorically stated that she is ready even today to join the company of petitioner and is ready to go to Village Nathuwala Jadid in case she is not maltreated. Respondent has ever since the date of filing of written reply showed her inclination to join the company of the petitioner but there is nothing on record to show that petitioner ever made any effort after filing of the present petition in 2005 to rehabilitate the respondent. In those circumstances, it appears that petition has though filed the present petition seeking decree of conjugal rights but he really is not interested to rehabilitate respondent.
14. Compromise was allegedly affected between the parties in proceedings under section 125 Cr.P.C. Copy of the statement of the parties recorded in the said proceedings dated 16.10.2006 are on record in which petitioner has stated that he is ready to take his wife to his place of posting and arrange for separate accommodation within a period of one month and would be responsible for bringing his wife back to enable her to meet her parents. Statement of respondent shows that she would join the company of petitioner when he would get the quarter and thereafter, they always visited together to meet her parents and her in-laws. It was the plea of Ld.counsel for the petitioner that this statement of respondent and petitioner would show that respondent had pressurized petitioner to get a GURBAX SINGH 2014.11.18 12:00 I attest to the accuracy and integrity of this document High Court Chandigarh FAO -M-394-2014 5 separate accommodation for her at his place of posting and it also shows that she does not want to live at the house of parents of petitioner. This statement of respondent and the petitioner cannot be construed that respondent had been at fault in joining the company of the petitioner, rather respondent has in clear words in cross-examination recorded in the Court, when she stepped in the witness box as RW-1 stated that she is ready to join the company of the petitioner and stay at Village Nathuwala provided that she is not maltreated by her in-laws. No doubt, petitioner has not brought on record any MLR or application made to the police but it is no ground to hold that respondent was not maltreated. No Indian wife would ever think of leaving her matrimonial house unless there were real compelling circumstances. Even if respondent had shown her desire to live with the petitioner at his place of posting that in itself cannot be construed to be a ground for refusal on the part of respondent to join the company of petitioner.
15. Petitioner has come forward with the plea that the marriage of the petitioner with respondent was a simple affair and only five persons had attended the marriage but this plea of petitioner does not sound to be probable as PW-1 Numberdar Darshan Singh claims that he had attended the marriage of petitioner with respondent. PW-2 Baldev Singh also claims that he had attended the marriage of the parties. PW-3 Bachan Singh, father of petitioner ought to have attended the marriage of petitioner. PW-4 Amar Singh and PW-5 Nirmal Singh also claim to have attended the marriage. It does not sound probable that no other person would have attended the marriage from the family of petitioner. Rather the statement of the petitioner, if perused would make the version of petitioner highly improbable. It is improbable that in a marriage no food, tea would ever be served to the guests.GURBAX SINGH 2014.11.18 12:00 I attest to the accuracy and integrity of this document High Court Chandigarh FAO -M-394-2014 6
The intention of the petitioner to rehabilitate the respondent also does not appear to be bonafide when petitioner has not made any effort to rehabilitate the respondent after the filing of the petition in the year 2005 i.e. for the last nine years rather it appears to have been filed as a counter-blast to the petition under Section 125 Cr.P.C.
16. So, in view of my above discussion it stands proved that respondent had been compelled to withdraw from the society of the petitioner being so maltreated by petitioner and her in- laws and this petition is proved to have been filed as a counter blast to the petition under Section 125 Cr.P.C. As such,petitioner is not entitled to decree of restitution of conjugal rights. Accordingly,issues No.1 and 3 stand decided in favour of respondent and against the petitioner while issue No.2 stands decided against the petitioner and in favour of respondent."
The finding has been recorded by the trial court after appreciating the entire evidence on record. It has come to the conclusion that the respondent had been compelled to withdraw from the society of the appellant. No serious effort had been made by the appellant to rehabilitate the respondent. Even the petition under Section 9 of the Act filed by the appellant was only an eye wash to skip his liability towards maintenance. Learned counsel for the appellant has not been able to show any illegality or perversity in the judgment and decree dated 28.7.2014 passed by the trial court. We do not find any ground to differ with the approach adopted by the trial court. Consequently, finding no merit in the appeal, the same is hereby dismissed.
(Ajay Kumar Mittal)
Judge
November 03, 2014 (Raj Mohan Singh)
'gs'
GURBAX SINGH
Judge
2014.11.18 12:00
I attest to the accuracy and
integrity of this document
High Court Chandigarh