Archana W/O Prakash Wankhede vs Prakash Motiram Wankhede
2016 Latest Caselaw 1673 Bom

                                               1



                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                                                   
                             NAGPUR BENCH : NAGPUR




                                                           
    Family Court Appeal No. 90 of 2014




                                                          
    Appellant                :      Archana wife Prakash Wankhede, aged about

                                    39 years, Occ: Nil, resident of c/o Shri 




                                              
                                    Mahadevrao Durge, Ward No. 22, Kalmeshwar,
                                  igDistrict Nagpur

                                    versus
                                
    Respondent               :      Prakash son of Motiram Wankhede, aged

43 years, Occ: service, resident of 78,

Jamdarwadi, Mehandibag Road, Near New

Mangalwari, Nagpur

Shri M. D. Chikhale, Advocate for petitioner

Shri A. P. Chaware, Advocate for respondent

Coram : Smt Vasanti A. Naik And

V. M. Deshpande, JJ

Dated : 20th April 2016

Oral Judgment (Per V. M. Deshpande, J)

1. By the present Family Court Appeal, aggrieved wife is

challenging the judgment and decree passed by the learned Principal Judge

of the Family Court, Nagpur dated 2nd June 2007 in Petition no. A-179 of

2002 whereby the learned Judge of the Family Court granted decree for

restitution of conjugal rights in the petition filed by the respondent-husband

under Section 9 of the Hindu Marriage Act.

2.

The factum of marriage between the parties on 24.6.1991, is

not in dispute. The husband filed the proceedings under Section 9 of the

Hindu Marriage Act on assertion that the wife has withdrawn herself from his

company without any lawful excuse.

3. The application for restitution of conjugal right was contested

by the wife mainly on the ground that on earlier occasion, she was required

to file the proceedings under Section 125 Cr. P. C. for maintenance and the

learned Magistrate of Saoner Court before whom such proceedings were

filed, was pleased to grant Rs. 500/- per month by way of maintenance. It

was also pointed out that the said order of granting maintenance was

questioned in a criminal revision by the husband which came to be dismissed

and, therefore, according to the wife, it is husband who had deserted her and

she prayed for dismissal of the proceedings.

4. Perusal of the record shows that both the parties have entered

into witness box. However, none the parties to the proceedings, has

examined any other witness.

5. The learned Judge of the Family Court, after appreciation of the

evidence and pleadings, vide judgment and decree dated 2.6.2007 reached to

the conclusion that the husband is entitled for decree of restitution of

conjugal rights.

6. After hearing the learned counsel for the parties to this appeal

and after having gone through the entire pleadings as also evidence on

record, following points arise for our determination :

(1) Whether husband Prakash Motiram Wankhede is entitled for

decree of restitution of conjugal rights ?

(2) Whether the judgment and decree passed by the Principal Judge

of the Family Court needs interference ?

Our findings on the aforesaid points are as under :

            (1)     ..       ..     Yes.

            (2)     ..       ..     No.

7. Exhibit 25 is the notice issued by the husband. The said notice

is dated 27.2.2002. By the said notice, the husband made an attempt that the

wife should join his company. The said notice, though was received by the

wife, as admitted by her in evidence, was not replied by her.

8. In our view, the learned Judge of the Court has correctly ruled

that the findings recorded in the maintenance proceedings cannot have the

binding effect inasmuch as the said proceedings were summery in nature and,

therefore, the standard of proof required in the civil proceedings, is very high.

Therefore, merely because the application for maintenance was granted, that

by itself cannot be a ground to reach to a conclusion that the wife was

neglected by the husband.

9. The important aspect for grant of decree for restitution of

conjugal rights can be seen from the evidence of wife herself. During the

course of her evidence, it is brought on record as follows :-

"........I am ready to live with my husband."

"......I will join his company only in case the petitioner is ready to

pay me Rs. 1.5 lakh spent by me for this case. In case the

amount is not paid, I will not join with his company."

10. From the aforesaid part of evidence, it is clear that it is the

greed of the wife which appears to have weighed in her mind and has not

continued her company with her husband.

Once the wife has stated in her evidence that she is ready to live

with her husband, we see no reason to interfere with the judgment and

decree passed by the learned Principal Judge of the Family Court.

11. After appreciating the case of the husband on the basis of the

available evidence on record, we record our finding that the husband Prakash

is entitled for decree of conjugal rights. Further, we see no perversity in the

appreciation of the evidence by the learned Judge of the Family Court.

Resultantly, we are of the view that the judgment delivered by the learned

Principal Judge of the Family Court needs to be maintained.

12. In the result, appeal is dismissed. No costs.

            V. M. DESHPANDE, J                              SMT VASANTI A. NAIK, J



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