Abhay S/O. Gulabrao Virkhede vs Smt. Swati W/O. Abhay Virkhede
2017 Latest Caselaw 272 Bom

FCA 34/16                                          1                          Judgment


     IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
               NAGPUR BENCH, NAGPUR.
                 FAMILY COURT APPEAL No. 34/2016

Abhay s/o Gulabrao Virkhede,
Aged 38 Yrs., Occ. Nil,
r/o Plot No.42, Geeta Nagar,
Zingabai Takli, Nagpur-30.                                                  APPELLANT

                                   .....VERSUS.....


Smt.Swati w/o Abhay Virkhede,
Aged 33 Yrs., Occ. Nil,
r/o Shri.Abhiman Dorle,
At post - Khairi, Kamptee Road,
Tah. Kamptee, Dist. Nagpur.                                                   RESPONDENT


                     Shri Sudhir Malode, counsel for the appellant.
                     Shri A.B. Bambal, counsel for the respondent.


                                   CORAM :  SMT.VASANTI  A  NAIK AND
                                                 V.M. DESHPANDE, JJ.        

ST DATE : 1 MARCH, 2017.

ORAL JUDGMENT (PER : SMT.VASANTI A NAIK, J.)

The family court appeal is ADMITTED and heard finally at

the stage of admission with the consent of the learned counsel for the

parties.

2. By this family court appeal, the appellant challenges the

judgment of the Family Court allowing a petition filed by the respondent

under Section 9 of the Hindu Marriage Act, 1955 for the restitution of

conjugal rights.

FCA 34/16 2 Judgment

3. The appellant-husband and the respondent-wife were married

at Nagpur on 31.05.2010. The parties started residing separately from

23.08.2010. The paternal home of the respondent-wife is at a distance of

about 15 to 20 kilometers from the matrimonial house. According to the

appellant, the respondent-wife was taken to her parental home for her

treatment as she was suffering from a mental disorder. The appellant

filed a petition under Section 12(c) of the Hindu Marriage Act for a

declaration that the marriage solemnized between the parties was null

and void as the wife had concealed the fact that she was suffering from a

mental disorder even before the solemnization of the marriage. The

petition filed by the wife under Section 9 of the Act and the petition filed

by the husband under Section 12 of the Act were tried together by the

Family Court and the Family Court, on an appreciation of the material

evidence on record, dismissed the petition filed by the husband and

allowed the petition filed by the wife.

In the petition filed by the wife for restitution of conjugal

rights, she had stated that initially, the husband and his family

members behaved well with her but, after a few days, their behaviour

changed drastically. It is pleaded by the wife that the husband used to

doubt her character and used to torture her in view of his demand of

Rs.4,00,000/- from her father. The wife pleaded that though the

financial status of her parents was not good, the husband always

demanded a sum of Rs.4,00,000/- from her father and insulted and

FCA 34/16 3 Judgment

abused her and her family members in most filthy and foul language.

It is pleaded that the mother of the husband snatched the dish-lunch

plate from the hands of the wife on many occasions and the wife was

kept without food. It is pleaded that the wife was many a times not

permitted to drink water and the glass of water was snatched from

her hands. It is pleaded that the husband used to switch off the main

switch when the wife was sleeping in her bedroom on the first floor.

The wife further pleaded that many a times, the husband and her

mother-in-law used to beat her mercilessly in view of the demand of

dowry. It is pleaded that Meena and Shalini Virkhede also used to

beat her mercilessly and used to demand Rs.4,00,000/- from her father.

It is pleaded that in view of the torture by the husband and his family

members, the wife was required to live separately. It is pleaded that

when she was feeling better on 15.09.2010, she went to the matrimonial

home but, the mother and the brother of the husband drove her out of

the house and closed the door. It is pleaded that her family members

were also abused by the husband and his family members and, therefore,

she had to lodge a complaint against them under Section 498 of the Penal

Code. The wife sought a decree of restitution of conjugal rights on the

aforesaid pleadings.

4. The husband denied the claim of the wife and also denied all

the adverse allegations made by her against him and his family members.

FCA 34/16 4 Judgment

It is stated that since the wife suffered from a mental disorder, fearing an

untoward incident, the husband told the father of the wife to take her to

a psychiatrist and give her better treatment. The husband pleaded that

the father of the wife, however, did not take her to a psychiatrist and also

did not treat her. It is pleaded that in the presence of Mahila Cell

Counselor, the wife abused the husband and his family members in vulgar

language. It is stated that certain bad words used by the wife were heard

and recorded by the marriage counselor. It is pleaded that the wife told

him from the inception of the marriage that she never wanted to marry,

never wanted to reside in a joint family but, her father forced her to

marry in a joint family. The husband pleaded that the wife had played a

fraud on him and a decree of restitution of conjugal rights may not be

passed.

5. The Family Court framed the issue as to whether the wife

had deserted the husband without any just or reasonable excuse and

whether a decree for restitution of conjugal rights could have been

passed. The Family Court held that the wife was entitled to a decree of

restitution of conjugal rights. The judgment of the Family Court directing

the husband to resume cohabitation with the wife by allowing the petition

filed by her under Section 9 of the Act is assailed by the husband in this

appeal.

FCA 34/16 5 Judgment

6. Shri Malode, the learned counsel for the appellant,

submitted that the issues framed by the Family Court in the petition

filed by the wife are answered by the Family Court in favour of the wife

by an extremely cryptic order. It is stated that there is no consideration

by the Family Court of the pleadings and the evidence tendered by the

parties in the petition filed by the wife under Section 9 of the Act. It is

stated that without considering the material on record and without

considering whether the wife was successful in proving the case that she

had tried to make out against the husband, the Family Court has allowed

the petition for restitution of conjugal rights. It is stated that in the

circumstances of the case, the matter needs to be remanded to the Family

Court, specially when the Family Court has not discussed the evidence of

the parties in the petition filed by the wife for restitution of conjugal

rights.

7. Shri Bambal, the learned counsel for the wife, supported the

judgment of the Family Court. It is stated that the wife was forced to live

in the parental home in view of the ill-treatment by the husband. It is

stated that the wife had not withdrawn from the company of her husband

and the husband had withdrawn from her company. It is, however, fairly

admitted that the Family Court has not discussed the evidence tendered

by the parties in the petition for restitution of conjugal rights.

FCA 34/16 6 Judgment

8. On hearing the learned counsel for the parties and on a

perusal of the judgment of the family court, it appears that the following

points arise for determination in this appeal:-

I) Whether the wife has proved that the husband had left her

company without any just or reasonable excuse?

II) Whether the matter needs to be remanded to the Family

Court?

III) What order?

9. We have already narrated the pleadings of the parties in the

earlier part of the judgment. The parties had entered into the witness box

and had tendered evidence in support of their respective cases. The Family

Court had framed the following issues in the petition filed by the wife.

i. Whether the respondent has withdrawn from the petitioner's society without any reasonable cause?

ii. Whether the petitioner is entitled to claim a decree for restitution of conjugal rights under Section 9 of the Hindu Marriage Act?

               iii.             What order and decree?





 FCA 34/16                                          7                           Judgment

10. The aforesaid issues are considered and answered by the Family

Court in paragraphs 36 and 37 of the judgment thus:-

"36. The respondent categorically has stated in her

evidence affidavit that she was illtreated by the petitioner and

his family members. She is always ready to cohabit with the

petitioner and she has made attempts to resume cohabitation

with the petitioner, but in vain.

37. The petitioner has made imaginary allegations

against the respondent that she is suffering from bipolar

disorder and she has refused to consummate the marriage.

However, he has failed to establish his case. It appears that the

petitioner has made attempts to avoid the marriage and

therefore, the respondent was compelled to live at her parental

home. The petitioner-husband has withdrawn from the society

of the respondent since August-2010. Therefore, the

respondent-wife is entitled to the decree of restitution of

conjugal rights. Hence, I answer issues nos.1 and 2 in petition

No.A-214 of 2011 in affirmative."

11. It is surprising that the Family Court has not discussed the

evidence tendered by the parties, much less, in detail while deciding the

petition filed by the wife for restitution of conjugal rights. The wife had

levelled several serious allegations against the husband and had still

FCA 34/16 8 Judgment

sought for a decree for restitution of conjugal rights. The evidence

tendered by the parties is not considered by the Family Court at all while

deciding the issue whether the husband had withdrawn from the society

of the wife without any reasonable excuse. There is neither a discussion

of the evidence of the parties in paragraphs 36 and 37 of the judgment

nor is an appropriate finding recorded by the Family Court in respect of

the withdrawal of the husband or by the wife from the society of each

other. The Family Court has recorded that the wife was compelled to live

in her parental home without recording any reason as to why she was

required or compelled to live in her parental home. From paragraphs 36

and 37 of the judgment, it is apparent that the Family Court has not

applied its mind to the pleadings and the evidence of the parties in the

petition filed by the wife for restitution of conjugal rights. The judgment

of the trial Court in which the pleadings and the evidence of the parties is

not considered before rendering the findings, cannot be a judgment in the

eye of law. It is rightly submitted on behalf of the husband that the

petition for restitution of conjugal rights needs to be remanded to the

Family Court so that the same could be decided on merits in accordance

with law. Neither are the allegations levelled by the wife against the

husband considered by the Family Court nor are the allegations levelled

by the husband against the wife in respect of her conduct are considered

by the Family Court.

FCA 34/16 9 Judgment

12. Hence, for the reasons aforesaid, the family court appeal is

partly allowed. The judgment of the Family Court so far as it grants a

decree of restitution of conjugal rights in favour of the respondent-wife is

set aside. The matter is remanded to the Family Court for deciding the

petition filed by the wife in accordance with law. The Record &

Proceedings be remitted to the Family Court at the earliest. The parties

undertake to appear before the Family Court on 03.04.2017 so that

service of notice to the parties could be dispensed with. There would be

no order as to costs.

              JUDGE                                          JUDGE



APTE