Rakesh Phukan, Assam Vs. Mrs. Juri Boruah, Jorhat (Assam) - Court Judgment

SooperKanoon Citationsooperkanoon.com/1172883
CourtGuwahati High Court
Decided OnFeb-18-2014
Case NumberMat Appeal No. 25 of 2012
JudgeK. SREEDHAR RAO & P. K. SAIKIA
AppellantRakesh Phukan, Assam
RespondentMrs. Juri Boruah, Jorhat (Assam)
Excerpt:
(cav), p.k. saikia, j. 1. this appeal is directed against the judgment and order dated 03.05.2012, passed by district judge, jorhat in (marriage) title suit no. 21/2011, dismissing the suit on holding that the husband/petitioner is not entitled to a decree for restitution of his conjugal rights. 2. heard mr. p. bhattacharya, learned counsel for the appellant. also heard ms. p.p baruah, learned counsel appearing for the respondent. 3. the facts which are necessary for disposal of the present appeal are that the petitioner sri. rakesh phukan married smti. juri baruah according to the rites of hindu religion on 22.01.2006. however, the marriage ran into rough weather soon after its solemnization inasmuch as the wife/respondent started humiliating the petitioner on slightest pretext which caused enormous physical discomfort and mental agony to the petitioner. 4. after troubling him for several months, on 11.05.2006, the wife/respondent left her matrimonial house without there being any rhyme and reason. soon thereafter, she filed a proceeding u/s 125 cr. p.c which was registered as m.c no. 15/2007. in the meantime, he also filed the criminal case against the petitioner on some false and frivolous allegations which was registered as c.r no. 513/06. in the meantime, a period more than 2 years had elapsed but the wife/respondent did not return to her matrimonial house. 5. the petitioner was therefore, compelled to file a suit u/s 13(i)(i-b) of the hindu marriage act, 1955 which was registered as (marriage) title suit no. 48/2008. said suit was dismissed on 29.11.2010 by district judge and such dismissal, according to the husband/petitioner, was made on the ground that in her written statement, the wife/respondent expressed her desire to go back to the society of the husband/petitioner in order to live with him as husband and wife peacefully. 6. since wife/respondent did not return to her matrimonial home as stated in her written statement, the husband/petitioner issued a registered letter dated 17.01.2011 requesting his wife to return to her matrimonial house immediately. the notice of the proceeding was received by the wife/respondent but did not reply the same nor did she return to the house of her husband as requested. even thereafter, the petitioner sent two of his friends to his wifes house to pursue her to come back to her matrimonial house. 7. however, instead of allowing the wife/respondent to meet the emissaries of the husband/petitioner, mother of the wife/respondent met those persons and told them that her daughter was not interested to return to fold of her husband under any circumstances. since all the attempts, aimed at bringing back his wife failed, husband/petitioner filed a suit u/s 9 of the hindu marriage act, 1955 seeking a decree for restitution of his conjugal rights vis-à-vis his wife. 8. notice of the said proceeding was served on the wife/respondent. she entered appearance and contested the proceeding having filed to the written statement. in her statement, she admitted her marriage with the husband/petitioner but denied all other allegations. according to her, her husband or other members of his family never treated her with love and affection. rather, she was treated with all kinds of contempt, disdain and disrespect making her life in her matrimonial house unbearable. 9. under those compelling circumstances, she was forced to leave her matrimonial residence on 11.05.2006. it is her specific case that at no point of time, she troubled her husband or other family members with any kind of demand whatsoever, much less her demanding colour television, washing machines and a house with good condition from her husband. once she left her matrimonial house, the husband/petitioner never contacted either wife/respondent or her other family members. 10. it is also the contention of the wife/respondent that in the suit, filed by the petitioner seeking decree of divorce, she filed written statement stating that she was interested to go back to her matrimonial husband to resume her marriage life. though she waits for that purpose for 7 to 10 days, yet, the husband/petitioner made no attempt to take her back to his house. very surprisingly, the petitioner made some half hearted attempt only when the divorce proceeding initiated by him stood dismissed. 11. the wife/respondent also contends that the petitioner filed the divorce proceeding seeking a decree for dissolution of marriage mainly on the ground of wifes deserting her husband. however, learned trial court on hearing the parties was pleased to hold that the petitioner would not make out that the wife/respondent had deserted her husband and on the basis of such conclusion, the trial court dismissed the aforesaid divorce proceeding. 12. it is also the contention of the wife/respondent that title suit no. 21/2011 seeking a decree for restitution of conjugal rights of the petitioner with his wife was filed only to prevent his wife from getting some benefits from the proceeding u/s 125 cr. p.c. in view of above pleadings, the learned trial court had framed the following issues:- “issue no.-1: is there any cause of action for the suit? issue no.-2 : whether the petitioner is entitled to get a decree for restitution of conjugal rites as prayed for? issue no-3 : to what relief/reliefs the parties are entitled to?” 13. while the petitioner has adduced the evidence of 3 witnesses including himself, wife/respondent has also examined herself in support of her case. on the conclusion of trial, the learned district judge, jorhat concluded that the petitioner could not make out a case requiring it to pass a decree in favour of the petitioner u/s 9 of the hindu marriage act. it is that judgment which has been assailed in this appeal. 14. we have carefully pursued the judgment under challenge having regard to the evidence on record as well as the pleading of the parties. we have found that there was no dispute over the fact that the husband/petitioner married the respondent in marriage title suit no. 21/2011. there is no quarrel over the fact that the wife/respondent left her matrimonial house on 11.05.2006. both the sides, however, advanced contradictory claims in regard to respondents leaving her matrimonial residence. 15. one may note here that in a suit for a decree for restitution of conjugal rights, the petitioner needs to prove that (i) the opposite party withdraws from the society of the petitioner and (ii) such withdrawn is unjustified. a careful perusal of the evidence of the parties reveals that the husband/petitioner as well as his family members did not behave properly with the respondent in title suit no. 21/2011 although the later was quite respectful to her husband and his other family members. 16. we have also found that in the proceeding under scrutiny, the petitioner contends that the respondent had made his life horrible by making demand for various costly household articles but very interestingly, the petitioner did not make such a claim in earlier round of litigation. absence of such a vital allegation in the previous round of litigation only serves to show that the above contention has been invented for second round of litigation which had hardly any element of truth therein. 17. one more factor has deserved our attention. the wife/respondent categorically claims that while she was in the house of her husband she was rudely behaves by her husband and by his other family members as well. very interestingly, those claims of wife/respondent were not disputed by the petitioner. such uncontroverted evidence again established that the petitioner and his family members forced the respondent to leave her matrimonial house. 18. we may note here that though the petitioner contends that title suit no. 48/2008 was dismissed on the basis of statement made by wife/respondent in her written statement yet it is found that such a proceeding was dismissed on merit having been found that the petitioner therein could not prove that his wife deserted him. such a revelation not only shows the hollowness of the claim of petitioner in title suit no. 21/2011 but also demonstrates that the petitioner has initiated the proceeding aforementioned with some ulterior intention and motive. 19. one may note here that having filed written statement in title suit no. 48/2008, the respondent expressed her desire to go to her husband house if he comes to her house and if he takes her back to his house within a period from 7 to 10 days there-from. there is evidence on record to show that the petitioner did not come to the house of wife within the period aforesaid or even till date. rather he sent two of his friends to the house of his wife, and that too, only after the dismissal of the title suit no. 48/2008. 20. such conduct on the part of the petitioner are fluent testimony to the fact that the petitioner would not have sent any emissary to the house of his wife to discuss the matter relating to her going back to her husband house--------had------he got a favorable judgment from the matrimonial court at jorhat. thus, in the facts and circumstances of the case, under consideration, one would be totally justified in concluding that the petitioner never seriously thinks of taking his wife back to his house. 21. thus, we are constrained to hold that the petitioner never made any serious attempt to bring his wife back to his house. what attempts he made were either half hearted or unenthusiastic which was not designed to produce any positive result. those efforts were, in fact, too cosmetic and too superficial to produce any meaningful result. 22. our forgoing discussions, now, reveal that the contention of the petitioner (i) that his wife ill treated him soon after the marriage, (ii) that his wife left his company without any rhyme and reason, (iii) that he made genuine efforts to bring her back to his fold and (iv) that the earlier round of litigation was dismissed only because of his wifes expressing desire to return to the society of her husband are all found to be without any substance. 23. quite contrary to above, we have found that the petitioner and his other family members made the life of his wife (respondent in title suit no. 48/2008 and in title suit no. 21/2011) horrible which forced her to abandon her matrimonial house. that being so, the petitioner fails to make out a case requiring the court below to grant a decree for restitution of his conjugal right vis-à-vis his wife/respondent. 24. consequently, we have found that the learned district judge, jorhat committed no wrong whatsoever in dismissing the suit of the petitioner on concluding that the case of the petitioner has no merit, whatsoever. 25. accordingly, this appeal is dismissed. 26. no costs.
Judgment:

(CAV), P.K. Saikia, J.

1. This appeal is directed against the judgment and order dated 03.05.2012, passed by District Judge, Jorhat in (Marriage) Title Suit No. 21/2011, dismissing the suit on holding that the husband/petitioner is not entitled to a decree for restitution of his conjugal rights.

2. Heard Mr. P. Bhattacharya, learned counsel for the appellant. Also heard Ms. P.P Baruah, learned counsel appearing for the respondent.

3. The facts which are necessary for disposal of the present appeal are that the petitioner Sri. Rakesh Phukan married Smti. Juri Baruah according to the rites of Hindu religion on 22.01.2006. However, the marriage ran into rough weather soon after its solemnization inasmuch as the wife/respondent started humiliating the petitioner on slightest pretext which caused enormous physical discomfort and mental agony to the petitioner.

4. After troubling him for several months, on 11.05.2006, the wife/respondent left her matrimonial house without there being any rhyme and reason. Soon thereafter, she filed a proceeding u/s 125 Cr. P.C which was registered as M.C No. 15/2007. In the meantime, he also filed the criminal case against the petitioner on some false and frivolous allegations which was registered as C.R No. 513/06. In the meantime, a period more than 2 years had elapsed but the wife/respondent did not return to her matrimonial house.

5. The petitioner was therefore, compelled to file a suit u/s 13(I)(i-b) of the Hindu Marriage Act, 1955 which was registered as (Marriage) Title Suit No. 48/2008. Said suit was dismissed on 29.11.2010 by District Judge and such dismissal, according to the husband/petitioner, was made on the ground that in her written statement, the wife/respondent expressed her desire to go back to the society of the husband/petitioner in order to live with him as husband and wife peacefully.

6. Since wife/respondent did not return to her matrimonial home as stated in her written statement, the husband/petitioner issued a registered letter dated 17.01.2011 requesting his wife to return to her matrimonial house immediately. The notice of the proceeding was received by the wife/respondent but did not reply the same nor did she return to the house of her husband as requested. Even thereafter, the petitioner sent two of his friends to his wifes house to pursue her to come back to her matrimonial house.

7. However, instead of allowing the wife/respondent to meet the emissaries of the husband/petitioner, mother of the wife/respondent met those persons and told them that her daughter was not interested to return to fold of her husband under any circumstances. Since all the attempts, aimed at bringing back his wife failed, husband/petitioner filed a suit u/s 9 of the Hindu Marriage Act, 1955 seeking a decree for restitution of his conjugal rights vis-à-vis his wife.

8. Notice of the said proceeding was served on the wife/respondent. She entered appearance and contested the proceeding having filed to the written statement. In her statement, she admitted her marriage with the husband/petitioner but denied all other allegations. According to her, her husband or other members of his family never treated her with love and affection. Rather, she was treated with all kinds of contempt, disdain and disrespect making her life in her matrimonial house unbearable.

9. Under those compelling circumstances, she was forced to leave her matrimonial residence on 11.05.2006. It is her specific case that at no point of time, she troubled her husband or other family members with any kind of demand whatsoever, much less her demanding colour television, washing machines and a house with good condition from her husband. Once she left her matrimonial house, the husband/petitioner never contacted either wife/respondent or her other family members.

10. It is also the contention of the wife/respondent that in the suit, filed by the petitioner seeking decree of divorce, she filed written statement stating that she was interested to go back to her matrimonial husband to resume her marriage life. Though she waits for that purpose for 7 to 10 days, yet, the husband/petitioner made no attempt to take her back to his house. Very surprisingly, the petitioner made some half hearted attempt only when the divorce proceeding initiated by him stood dismissed.

11. The wife/respondent also contends that the petitioner filed the divorce proceeding seeking a decree for dissolution of marriage mainly on the ground of wifes deserting her husband. However, learned trial Court on hearing the parties was pleased to hold that the petitioner would not make out that the wife/respondent had deserted her husband and on the basis of such conclusion, the trial Court dismissed the aforesaid divorce proceeding.

12. It is also the contention of the wife/respondent that Title Suit No. 21/2011 seeking a decree for restitution of conjugal rights of the petitioner with his wife was filed only to prevent his wife from getting some benefits from the proceeding u/s 125 Cr. P.C. In view of above pleadings, the learned trial Court had framed the following issues:-

“Issue No.-1: Is there any cause of action for the suit? Issue No.-2 : Whether the petitioner is entitled to get a decree for restitution of conjugal rites as prayed for? Issue No-3 : To what relief/reliefs the parties are entitled to?”

13. While the petitioner has adduced the evidence of 3 witnesses including himself, wife/respondent has also examined herself in support of her case. On the conclusion of trial, the learned District Judge, Jorhat concluded that the petitioner could not make out a case requiring it to pass a decree in favour of the petitioner u/s 9 of the Hindu Marriage Act. It is that judgment which has been assailed in this appeal.

14. We have carefully pursued the judgment under challenge having regard to the evidence on record as well as the pleading of the parties. We have found that there was no dispute over the fact that the husband/petitioner married the respondent in Marriage Title Suit No. 21/2011. There is no quarrel over the fact that the wife/respondent left her matrimonial house on 11.05.2006. Both the sides, however, advanced contradictory claims in regard to respondents leaving her matrimonial residence.

15. One may note here that in a suit for a decree for restitution of conjugal rights, the petitioner needs to prove that (i) the opposite party withdraws from the society of the petitioner and (ii) such withdrawn is unjustified. A careful perusal of the evidence of the parties reveals that the husband/petitioner as well as his family members did not behave properly with the respondent in Title Suit No. 21/2011 although the later was quite respectful to her husband and his other family members.

16. We have also found that in the proceeding under scrutiny, the petitioner contends that the respondent had made his life horrible by making demand for various costly household articles but very interestingly, the petitioner did not make such a claim in earlier round of litigation. Absence of such a vital allegation in the previous round of litigation only serves to show that the above contention has been invented for second round of litigation which had hardly any element of truth therein.

17. One more factor has deserved our attention. The wife/respondent categorically claims that while she was in the house of her husband she was rudely behaves by her husband and by his other family members as well. Very interestingly, those claims of wife/respondent were not disputed by the petitioner. Such uncontroverted evidence again established that the petitioner and his family members forced the respondent to leave her matrimonial house.

18. We may note here that though the petitioner contends that Title Suit No. 48/2008 was dismissed on the basis of statement made by wife/respondent in her written statement yet it is found that such a proceeding was dismissed on merit having been found that the petitioner therein could not prove that his wife deserted him. Such a revelation not only shows the hollowness of the claim of petitioner in Title Suit No. 21/2011 but also demonstrates that the petitioner has initiated the proceeding aforementioned with some ulterior intention and motive.

19. One may note here that having filed written statement in Title Suit No. 48/2008, the respondent expressed her desire to go to her husband house if he comes to her house and if he takes her back to his house within a period from 7 to 10 days there-from. There is evidence on record to show that the petitioner did not come to the house of wife within the period aforesaid or even till date. Rather he sent two of his friends to the house of his wife, and that too, only after the dismissal of the Title Suit No. 48/2008.

20. Such conduct on the part of the petitioner are fluent testimony to the fact that the petitioner would not have sent any emissary to the house of his wife to discuss the matter relating to her going back to her husband house--------had------he got a favorable judgment from the Matrimonial Court at Jorhat. Thus, in the facts and circumstances of the case, under consideration, one would be totally justified in concluding that the petitioner never seriously thinks of taking his wife back to his house.

21. Thus, we are constrained to hold that the petitioner never made any serious attempt to bring his wife back to his house. What attempts he made were either half hearted or unenthusiastic which was not designed to produce any positive result. Those efforts were, in fact, too cosmetic and too superficial to produce any meaningful result.

22. Our forgoing discussions, now, reveal that the contention of the petitioner (i) that his wife ill treated him soon after the marriage, (ii) that his wife left his company without any rhyme and reason, (iii) that he made genuine efforts to bring her back to his fold and (iv) that the earlier round of litigation was dismissed only because of his wifes expressing desire to return to the society of her husband are all found to be without any substance.

23. Quite contrary to above, we have found that the petitioner and his other family members made the life of his wife (respondent in Title Suit No. 48/2008 and in Title Suit No. 21/2011) horrible which forced her to abandon her matrimonial house. That being so, the petitioner fails to make out a case requiring the court below to grant a decree for restitution of his conjugal right vis-à-vis his wife/respondent.

24. Consequently, we have found that the learned District Judge, Jorhat committed no wrong whatsoever in dismissing the suit of the petitioner on concluding that the case of the petitioner has no merit, whatsoever.

25. Accordingly, this appeal is dismissed.

26. No costs.