Uttarakhand High Court
Sukhram vs Smt. Om Sri Verma on 16 November, 2017
Equivalent citations: AIR 2018 UTTARAKHAND 57, (2018) 1 DMC 209
Bench: Rajiv Sharma, Sharad Kumar Sharma
Reserved
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
First Appeal No. 83 of 2013
Sukhram ......./Appellant
Versus
Smt. Om Sri Verma .......... Respondent
Present: Mr. Manoj Joshi, Advocate holding brief of Mr. Rajendra
Singh Azad, Advocate for the appellant.
None for the respondent.
Coram:- Hon'ble Rajiv Sharma, J.
Hon'ble Sharad Kumar Sharma, J.
Reserved on 19.09.2017 Delivered on : 16.11.2017 Per - Hon'ble Sharad Kumar Sharma, J.
Approach to this Court by the appellant who happens to be the plaintiff of Suit no. 268/2010 - Sukhram V. Smt. Om Sri Verma wherein he has invoked the jurisdiction of the learned family Court, Roorkee District Haridwar by invoking Section 9 of the Hindu Marriage Act, seeking a restitution of conjugal rights which according to his plaint allegations as he was deprived of wife's company due to a voluntary act of wife of withdrawing herself from the company of the husband. The said withdrawal of the wife from the company of husband, according to the husband is a 2 desertion in the eyes of law, which ought to have been attached with a genuine reason which was missing in the instant case.
2. Brief facts leading to the stage at which the dispute has reached i.e. by way of instant appeal arises out of the marriage which was solemnized between the appellant and the respondent on 17.06.2009 at Kanpur. As per the husband the marriage between them was solemnized at Govind Nagar, Kanpur. At the time of marriage, the husband was in the Instrumentation Department, IIT, Roorkee, District Haridwar, where he was employed even prior to the marriage. After having learnt about the husband being employed in IIT Roorkee, the family members of the respondent came to Roorkee and respondent No. 1 wanted to get the marriage settled and at the time of settlement of marriage, it was informed that the wife was an educated lady and she was working in a Junior High School, Samshahbad, District Farrukhabad, Uttar Pradesh which happens to be about only a distance of 400 k.m. from Roorkee (800 km. up and down).
3. According to the husband, the marriage between them was solemnized through newspaper classification. According to the husband, he expressed 3 that the settlement of the marriage between them was practically not possible looking to the fact that the wife was working at a considerable long distance. On which according to the husband an assurance was extended by the family members of the wife that they would be getting the wife transferred to place in or around a place near Roorkee. As a result after the marriage, the wife was transferred to District Saharanpur in its adjoining township of Chutmalpur in July 2009.
4. It was further the case of the husband that the family members of the wife have assured that they belong to middle class family and since both the parties to the marriage are working and were against the principles of dowry, the marriage was held between them in a simple manner with no exchange of dowry. The case of the husband is that in the initial period of marriage all went well and everything was fine but later on according to his case, when she was allowed to be transferred on her promotion, which was scheduled to be held very soon. The husband's case was that when after waiting for a considerable long time, the transfer has not taken place. He was unable to get the family settled due to this fact and reason that the wife was living separately, he was forced to live alone 4
5. Husband's case was that, rather later stage it has revealed to him that the wife has not even moved any application for getting her services transferred, nor any proceedings for transfer had been initiated. After the marriage, as usual, the wife was to leave for the parental home at Kanpur and she started residing with the in laws w.e.f 18.06.2009. On account of the fact that after fulfillment of certain Hindu rituals (Pagfera) on 24.06.2009, she once again went back to Kanpur to her parental home and thereafter returned from Kanpur on 27.06.2009 to the husband's home.
6. Husband submitted that on 27.06.2009, when he had gone to take his wife from Kanpur he took her back and immediately returned back to Roorkee and reached Roorkee on 28.06.2009. The husband's case is that since the wife was employed and she was in the habit of being a working lady, immediately on reaching Roorkee on 28.06.2009, she started misbehaving and was exerting pressure on the husband that she may be permitted to join her duties because she wants to work. She forced the husband to drop her back to Kanpur immediately.
7. The husband in slight anguish contended that in case if she was so keen to work at Kanpur, she 5 ought not to have accompanied the husband to Roorkee, more particularly, when she had immediately started pressing upon that she may be permitted to go back to Kanpur and join her services. It is the case of the husband that his wife had forced him to drop her to Kanpur and hence he has gone to Kanpur and dropped her at Kanpur. She joined her duties started working at Kanpur. Husband submitted that on 11.08.2009 in the night he went from Roorkee to Kanpur to bring her back but immediately after returning she started forcing the husband to drop her back as she wanted to participate in Independence Day function in her school which was to be held on 15.08.2009. According to the husband, he by wearing home clothes on 17.08.2009 had gone to Kanpur to bring her back after her participation in Independence Day function. The reason which she has often assigned for going to Kanpur was that till she is given joining to the places in and around Roorkee, she may be permitted to work at Kanpur and she used to fetch out excuses for her continuance at Kanpur and to avoid the husband company at Roorkee in her matrimonial home.
8. When all efforts of the husband to bring her back failed because each time she used to fish out a new excuse for not joining the husband, and often she 6 used to trouble him by calling him at different places on telephone, and the family members of the wife since they had much dominance on the wife it was to such an extent that she even at times declined to join the husband. The husband apprehended something untoward in the relationship and hence according to the plaint allegation he along with his family member went to his in-laws at Kanpur on 05.06.2010. On his visiting to Kanpur on 05.06.2010, instead of sending the wife along with husband, the parents and the family members of the wife started misbehaving with the husband and they became quarrelsome. And rather declined to permit her to join back.
9. The husband's case further was that despite of the said refusal, he once again made an effort by visiting the Kanpur on 25.10.2010 by Link Express to bring the wife back and to support the fact that he has gone to Kanpur on 25.10.2010, not only this he has placed on record the xerox copy of the train ticket also but before visiting the parents home of wife he had informed the office of the Senior Superintendent of Police, Kanpur also on 26.10.2010 which was annexed on record but they refuse to permit the wife to accompany the husband.
710. According to the husband, hence he had no option except to file a Suit for restitution of conjugal rights on account of there being a blatant denial on 26.10.2010, he sought for a relief that the respondent- wife may be directed to join back the company of the husband and to discharge her matrimonial obligations.
11. According to the husband, when the proceedings for restitution of conjugal rights was instituted by him in the family Court, Roorkee, District Haridwar, the respondent-wife had filed a transfer application under Section 24 of Code of Civil Procedure before this Court, which was numbered as Transfer Application No. 17 of 2011, whereby by the interim order dated 27.05.2011 proceeding of the matrimonial case under Section 9 was kept in abeyance but later when the transfer application was taken up on merits, the transfer application of the wife was dismissed by the judgment dated 13.03.2012.
12. In the written statement, thus filed by the wife paper No. 24A2 though she made efforts to deny the plaint allegations pertaining to desertion, she denied the incident of 25.10.2010 pertaining to the efforts made by the husband on his visiting to Kanpur to take her back. She submitted that all the pleadings 8 pertaining to show his sincerity that he had more concern towards the wife as pleaded in his pleading are absolutely false. She submitted that if the husband has given any complaint to the Senior Superintendent of Police on 07.03.2010 at Govind Nagar, Kanpur or to the CO, Kanpur, she has got no knowledge to it and hence she is not in a position to give reply to it, said complaint and actions taken on it.
13. What is relevant is that, in the pleading which she has raised in the additional plea wherein she has submitted that her parents got the marriage solemnized after investing a handsome amount. She submitted that on 24.06.2009, the plaintiff has taken a sum of Rs.28,000/- from her purse and also the ATM card and on being resisted by the wife, she was forcefully taken to the ATM machine and was forced to withdraw the money. She submitted that on account of illegal demand, raised by the husband's family, her family members have remitted an additional sum of Rs. 3.00 lakhs by way of dowry but still the mental and physical cruelty persisted.
14. She submitted that in relation to all the set of allegations, she lodged the proceedings under section 156(3) against the family members of the husband 9 involved for lodging case under Section 498-A and 3/4 Dowry Prohibition Act and she contends that the husband on getting the knowledge of the proceedings under Section 498A and 3/4 Dowry Prohibition Act on 06.06.2010, the husband visited the family of the wife and asked for forgiveness. On that pretext she submitted that she has withdrawn the proceedings under Section 156(3) and started residing with the husband since 2010.
15. To add to the atrocities exercised by the husband, she submitted that she is a teacher in a school in Kanpur and the husband used to visit from Farrukhabad to Kanpur on the day when the salary was disbursed to her and used to force her to handover the entire salary, which has been paid to her. With the aforesaid pleading the written statement as filed on 05.06.2012 and exchange of pleadings the proceedings reached upto the stage of hearing of the proceedings under Section 9 of the restitution of conjugal rights which has been decided by the impugned judgment dated 22.03.2013.
16. Learned family Court, by virtue of impugned judgment dated 22.03.2013 had dismissed the 10 application under Section 9 and hence the appeal on the following grounds.
17. The contention of the appellant before this Court is that the learned family Court has not considered the entire fact and the atrocities which was being exercised by the wife, by not joining the husband and not discharging her matrimonial obligations and continuing to residing at Kanpur under the pretext of being officially engaged as a teacher and thereby depriving the husband of her company. This deprivation of company of the husband by the wife was being argued by the learned counsel for the appellant as to be a withdrawal from the society of the husband for no valid reason.
18. The appellant contended that in the proceedings under Section 9 he has proved the fact though not believed by the learned family Court that there had been deliberate desertion despite of the fact that the respondent-wife had neither examined herself by producing herself in the witness box nor any of her witnesses during the trial to controvert the pleadings raised by the husband in Section 9 proceedings.
1119. The husband's case is that despite of the fact that there has not been an active participation of wife in the proceedings in Section 9, but yet his application for restitution of conjugal rights has been dismissed and thereby depriving him of the revival of his matrimonial relationship.
20. Having heard learned counsel for the parties and having gone through the evidence on record and the Lower Court Record as produced before us. On scrutiny of the impugned judgment dated 22.03.2013, we feel that on the basis of the exchange of pleadings, the Court has summarized the controversy from two view points as to whether the respondent had virtually refused to discharge the matrimonial obligations and secondly whether the proceedings for restitution of conjugal rights was maintainable against the respondent nos. 2 and 3.
21. Learned family Court held that though the respondent remained absent after having put in appearance and the matter proceeded ex parte against her as she has not produced herself before the Court to record her statement and the husband's case is that once the case has proceeded ex parte, then what he wants to communicate to this Court is that invariably 12 the petition under Section 9 ought to be allowed. Thus the view expressed is absolutely misconceived for the reason that even if one of the parties to the proceedings are not participating or avoid to participate after having put in appearance it does not preclude the Court from considering the grounds taken by the other party in his or her defense because otherwise also in the absence of a rival party in the proceedings, the Court has to consider the case of the party who is appearing based on his pleadings and the genuineness of the claim.
22. For the purposes of attracting desertion, it was the responsibility of the husband to prove that there existed a permanent aptitude and intention to live separately merely because a spouse is living separately for a momentary period due to any justified reasons for example which in the instant case happens to be her engagement of the wife as a teacher in a school at Kanpur, it cannot be permitted to be interpreted as to be "a willful withdrawal from the society of the husband", the term willful used over here would mean an intention to separate for all times to come or an indefinite period. This intention to live separately in future is not reflected from the pleadings of the husband or by any evidence on record.
1323. More particularly when the wife has always been willing to discharge her matrimonial obligations and more particularly when she has expressed her apprehension as to the manner in which the husband has behaved with her, and still she wanted to continue to discharge her matrimonial obligations may it be by residing at Kanpur. Merely because a wife is residing at Kanpur due to her professional engagement, it is not a willful desertion or withdrawing from the society of husband permanently.
24. It is highly improbable theory also which has been propagated by the husband to the effect that the resignation from the job was also one of the conditions for the settlement of marriage. Such type of contractual settlement of leaving the job for the purposes of solemnization of marriage apart from being arbitrary, it is unreasonable too besides having not been established by the husband. There cannot be any reasonableness to the statement given by the husband proposing the wife to resign from the services and to stay at Roorkee. He submits that since it was not acceded to, it would be taken as to be a deliberate and an intentional desertion. Wife declining to accept the proposal of husband to resign and then to marry him, 14 means the husband had accepted the condition that wife was to continue in job, as he still married her.
25. Looking to the finding recorded, pertaining to the factum of desertion, this Court feels that the impugned judgment is nothing but an inter mixing of facts with regards to the rival claims without application of the principles provided under Section 9 of the Hindu Marriage Act for the purposes of restitution of conjugal rights.
26. In that view of the matter and by disagreeing with the analogy assigned by the Court, while deciding the petition under Section 9 of the Hindu Marriage Act, this Court quashes the order dated 22.03.2013 and remits the matter back to the learned family Court to decide the application under Section 9 of the Hindu Marriage Act for restitution of conjugal rights filed by the husband, after providing due opportunity to the wife and laying down a specific finding pertaining to the parameters contemplated under Section 9 of Hindu Marriage Act and ingredients contained thereto.
27. Thus, the Appeal is allowed. Impugned judgment is quashed. Proceedings under Section 9 is remitted back to the family Court, Roorkee, District 15 Haridwar for a fresh decision which is expected that the learned Court below will decide the same within a period of six months from the date of receipt of the certified copy of the judgment.
28. No order as to costs.
(Sharad Kumar Sharma, J.) (Rajiv Sharma, J.) 16.11.2017 Mahinder/