Judgment:
S.D. Anand, J.
1. The appellant-husband is in appeal against rejection of his plea under Section 9 of the Hindu Marriage Act (hereinafter referred to as the 'the Act') by the learned Trial Court, vide order dated 2.5.2000.
2. The marriage between the parties was soleminsed on 5.3.1988. Two issues (a daughter and a son) were born out of their union on 8.12.1988 and 21.10.1991 respectively. Both were in bank employment at the time of their marriage. The appellant was posted at Patiala; while the respondent was posted at Bathinda. Sometime thereafter, the respondent was transferred to Samana, District Patiala. During her tenure over there, she used to commute daily from Patiala. On 30/31.8.1994, the respondent withdrew 'from the society of the petitioner'. The appellant is 'ready to keep the respondent with him at Patiala, the matrimonial house of the parties.'
3. Throughout the petition, the only averment made by the appellant-husband was that the respondent had withdrawn from his company without any reasonable cause and that he is ready to keep her at the matrimonial house at Patiala.
4. The respondent-wife also conceded that she stayed with the appellant till 30/31.8.1994. However, she made a different presentation about the circumstances under which she had withdrawn from the society of the appellant. The appellant and his relations were not satisfied with the adequacy of the dowry brought by her. They used to always taunt her on that account. The appellant would every month make her part with the entire salary. The mother and a named cousin sister of the appellant used to humiliate the respondent on account of the birth of a female child to her and also on account of inadequacy of the gifts in the form of 'Chhuchak'. On 15.6.1990, a named younger brother of the appellant threw her off his scooter which was being driven at a fast speed. The intention was to kill her. She was got hospitalised by her three named colleagues; while the aforementioned brother of the appellant fled the spot. It were the parents of the respondent who got her treated at the hospital. After discharge from the hospital, she was taken to Bathinda. She resumed cohabitation shortly thereafter on the assurance of the appellant and his relations that she would be treated well. However, things did not really change for her. In the year 1991, she was tortured physically and mentally when she was in a family way. She intimated her torture to her brother vide letters dated 17.5.1991 and 16.7.1991. On receipt thereof, she was fetched by the members of her natal family who brought to her natal house. On 15.1.1992, the appellant and his father went over to the natal house of the respondent and fetched her on a promise of good behaviour. However, on the night of 19.4.1992, she was belaboured by the appellant and a named brother of his even when she was in a family way. When she intimated it to her parents, her father, brother and uncle came over to the matrimonial house of the respondent. They too were humiliated and slapped. However, the relations of the respondent first took her to Bathinda and, on account of her condition, she was shifted to Chandigarh where she was diagnosed to be a case of missed abortion. Again, there was a panchayat on 22.11.1992 and she resumed cohabitation at the matrimonial house at Patiala. Again, during the period of her stay over there, she was forced to part with her salary besides certain cash amount of Rs. 15,000/- and an FDR of Rs. 3,000/-.
5. The mother-in-law of the respondent died a natural death on 11.10.1993. However, respondent was falsely accused of being accountable for her death.
6. On 29.8.1994, the death anniversary of her mother-in-law was held. There after, the respondent was beaten up but was saved by the neighboured On the night intervening 30/31.8.1994, the respondent over heard the appellant and his relations conspire her elimination. She left the matrimonial house early in the morning, alongwith her two children, and took shelter in the house of a named colleague from where she was fetched by her brother. The trial proceeded on the following issues:
1. Whether the respondent is living separately for sufficient and reasonable cause? OPR
2. Whether this Court has no jurisdiction to try the present suit? OPR
3. Whether the petitioner is entitled to the relief for restitution of conjugal rights as prayed for? OPP
4. Relief.
The learned Trial Court recorded findings adverse to the appellant under all the issues.
7. I have heard Shri V.M. Gupta, learned Counsel appearing on behalf of the appellant and have carefully gone through the file.
8. None entered appearance on behalf of the respondent to assist this Court.
9. As already noticed, the appellant did not at all indicate the circumstances under which the respondent had withdrawn from his conjugal company. All that he averred in the context is that the respondent left his conjugal company on 30/31.8.1994. The respondent does not dispute the timing, though her version about the circumstances under which she had to leave the matrimonial house is entirely different. Thus, it is common ground that the parties cohabited at Patiala till the night intervening 30/31.8.1994.
10. By the very nature of things, there cannot be possibly any documentary evidence about the goings-on in side the matrimonial house. Those living in the vicinity would either be silent spectators or just not interested in coming to the aid of the distraught female, for fear of annoying a life long neighbourer. The evidence adduced by the parties, in such a case, has to be appreciated in the light of the inbuilt limitations in the context.
11. The respondent proved on record two letters Ex.R/1 and Ex.R/2 which she had addressed to her brother. In the course thereof, she had informed him that she was not being treated well by the appellant and members of his natal family and that they used to deprive her off the cash amount and she would hardly have funds adequate enough to have even a cup of tea. There is nothing unnatural about the respondent having been able to address those letters to her brother because she is an educated lady and she was in job at a bank from where she could intimate her predicament to her brother by post.
12. The respondent, then, alleged that the appellant wants to get rid of her and that, in order to achieve that object, the named brother of the appellant threw her off his speeding scooter and fled the spot. The factum of scooter episode is not contested on behalf of the appellant. In his deposition at the trial, he stated that the scooter had been hit by an another scooter driven by a military man. It is also in his testimony that no report against that military man was lodged. It is further in his testimony that his brother also sustained a large number of injuries in that accident. If that were so, there is no reason why the appellant would not have lodged a report with the police. His statement that the above episode was not notified to the police does not inspire confidence. Further, the statement by the appellant that his brother had sustained a large number of injuries is also not proved on record. The aforementioned named brother of the appellant was not examined at the trial nor did the appellant examine Doctor who had treated his named the brother in respect of those injuries.
13. The tenor of averments in the petition would like to give out as if the appellant is an innocent wronged partner in the alliance and the respondent-wife had left the matrimonial house unannounced. The clue to that controversy is to be found from the testimony of none else or other than the appellant himself. He testified at the trial that he wanted the respondent to sell off the house at Bathinda in order to enable him to raise a housing loan from his employer. He made a specific averment that he could not have raised a loan till the house at Bathinda was sold off. He cemented that averment of his by reiterating, in a latter part of his cross-examination, that he would be willing to have the respondent restored to the matrimonial house after she would sell off the house at Bathinda and come over to stay at Patiala. The inescapable inference deducible in the circumstances of the case is that the appellant wants the respondent to sell off her house at Bathinda in order to enable him to raise a housing loan (for construction of a house at Patiala). The material obtaining on the file is also a clear pointer to the effect that the offer made by the appellant to agree to the restitution of the respondent to the matrimonial house is conditional. He wants her restitution only on the condition that she would sell of her house at Bathinda and would come over to the matrimonial house at Patiala.
14. In the presently developed society wherein it is a usual phenomenon to find both the spouses in the employment, it would be illogical for a spouse to insist upon the other to sell off her property just in order to enable him to raise a housing loan. If things can be sorted out in an amicable way, the couple may do anything. The insistence, however, of the appellant-husband in the context cannot be upheld.
15. The following facts are evident from the above discussion.
16. The parties to the cause have grown up children. Their marriage interse was soleminsed on 5.3.1988 and they are residing separately since 30/31.8.1994. The respondent-wife has been able to prove the reasons for the want of trust in the appellant-husband. In that context, it may be noticed that the respondent-wife has been able to prove that an attempt to do away with her was made by a named brother of the appellant-husband, by throwing her off a speeding scooter, which he himself was driving and, instead of getting her medical help, opted to fled the spot. In that view of things, the appellant-husband cannot validly filed a plea for restitution of conjugal rights as he had, by the proven facts, ceased to enjoy the confidence of the respondent-wife.
17. In the circumstances of the case, the learned Trial Court correctly recorded a finding that the respondent-wife had reasonable excuse to refrain from joining the conjugal company of the appellant.
The appeal is held to be denuded of merit and is ordered to be dismissed.