Chattisgarh High Court
Smt. Madhavi Yadu vs Sunil Chandra Yadu on 29 September, 2021
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
First Appeal (M) No. 142 of 2019
Smt. Madhavi Yadu W/o Shri Sunil Chandra Yadu Aged
About 27 Years D/o Shri Kirtanlal Yadu, R/o Through Nandu
General Stores, Gol Bazar, Rajnandgaon, District :
Rajnandgaon, Chhattisgarh
--- Appellant
Versus
Sunil Chandra Yadu S/o Shri R.S. Yadu Aged About 37
Years R/o A - 16, Centuri Cement Colony, Deendayal
Upadhaya Nagar, Dangania, Raipur, Tahsil And District
Raipur Chhattisgarh
--- Respondent
-----------------------------------------------------------------------------------------------
For Appellant :- Mr. Yogesh Pandey, Advocate.
For Respondent :- Mr. Gourav Singhal, Advocate.
-----------------------------------------------------------------------------------------------
Hon'ble Shri Justice Manindra Mohan Shrivastava
Hon'ble Smt. Justice Vimla Singh Kapoor,
Order on Board by Justice Manindra Mohan Shrivastava J.
29.09.2021
1. With the consent of both the parties matter is heard finally.
2. This appeal is directed against the judgment and decree
dated 05.01.2019 passed by the Family Court, by which,
respondents' application for restitution of conjugal rights
has been allowed.
3. Briefly stated, the case of the applicant is that the wife i.e.
Smt. Madhavi Yadu had left the matrimonial house without
any reasonable cause. It was pleaded, inter alia, in the
application that on 13.06.2012 marriage between the
parties was solemnized and they were also blessed with a
daughter on 02.06.2013. According to the pleadings made
in the application, the appellant/wife was aggressive by
nature and was not properly discharging household
obligations. She did not properly look after the husband
when he suffered an accident. False cases were registered
against the husband in the police station alleging cruelty in
connection with demand of dowry and finally the
appellant/wife left the matrimonial house without any
reasonable cause by making false allegation in various
fora. The appellant is willing to reside with his wife and
despite repeated attempts made, as the wife has not come
back, the decree of restitution of conjugal rights was
sought.
4. The appellant wife in her reply stated that she was
subjected to cruelty since long stating that she had not
brought sufficient dowry from her parents. Time and again,
she was subjected to physical assault. She used to be tied
with rope and burnt with cigarettes. She was also harassed
stating that she was playing witchcraft and time and again
assault was opened on her. It was pleaded that in this
manner, the harassment, cruelty and physical assault
continued and on 26 June, 2015, she was again scolded
and subjected to physical violence by assault on various
parts of the body and finally in order to save her, matter
was reported to the parents and with the help of the police
she was rescued and removed from the matrimonial house
on 02.07.2015. The appellant/wife, opposing the application
for restitution of conjugal rights claimed to have reasonable
excuse stating that she was been subjected to physical
violence and cruelty, therefore, no decree could be granted
in favour of the husband.
5. By impugned judgment and decree, the trial Court,
disbelieving oral and documentary evidence with regard to
physical violence and cruelty upon the wife held that wife
had no reasonable excuse against discharge of marital
obligation and a decree of restitution of conjugal rights has
been passed.
6. Learned counsel for the appellant would argue that the
appellant/wife has not only pleaded but has led a specific
and clear oral as well as documentary evidence to prove
that since long she was being subjected to assault, cruelty
in many ways by the husband and his family members and
apart from various incidents which had happened in the
past, she clearly stated regarding assault given to her on
28.06.2015, and thereafter, attempts made by her to rescue
herself the help of police and removed from matrimonial
house on 02.07.2015. Counsel for the appellant would
further argue that in order to prove the specific incident of
assault and cruelty soon before the wife was rescued from
the matrimonial house, apart from the oral evidence, report
in the police station as also medical examination report has
been led in evidence but this specific evidence has been
disbelieved by the learned trial Court on assumptions
drawn by appreciating the evidence as if the Court was
scrutinizing the evidence in a criminal case applying the
degree of proof beyond reasonable doubt, whereas in the
present proceedings, the principles of preponderance of
probability would apply.
7. On the other hand, learned counsel for the
respondent/husband has stated that the learned trial Court
has not committed any illegality or perversity in arriving at
conclusion that all the allegations of cruelty and harassment
were improbable, contradictory and otherwise not made
out. He would submit that all the incident prior to
28.06.2015, as pleaded in the application and as also in the
evidence has been minutely scrutinized by the Family Court
and disbelieved. He would submit that as far as incident of
assault on 28.06.2015 is concerned, the trial Court has
recorded cogent reasons. He would further argue that the
learned trial Court has clearly recorded a finding that in the
medical examination of the wife, conducted on 04.07.2015,
though the doctor found various injuries on her body, the
injuries were stated to have been caused within 72 hours
meaning thereby that the incident may have happened
around first of July,2015, whereas according to wife, the
incident of assault had happened on 28.06.2015. Thus,
pleading and evidence were found at variance and for that
reasons the learned trial Court rightly disbelieved the
allegation of assault and physical violence.
8. We have heard learned counsel for the parties and perused
the material available on record as also impugned judgment
and decree.
9. We find that as against the application for restitution of
conjugal rights, the appellant/wife has come out with
detailed pleadings which she has also stated in her
evidence that since long she was being subjected to various
form of violence, cruelty, assault, physical violence in the
hands of her husband and members of his family.
10. Keeping aside various details of what happened in the past,
we find that the appellant wife had very specifically pleaded
in her written statement before the Court below that she was
brutally assaulted by the husband and his family members
on 28.06.2015. She specifically pleaded in this regard in
para 8 of her written statement, wherein she has stated that
she was tied up with a nylon rope, she was dragged by
pulling her hair and was assaulted by hands and fists due to
which she also started bleeding and sustained injuries. She
further pleaded that on 02.07.2015, her father, brother
approached police authorities as also Chhattisgarh State
Rajya Mahila Aayog and finally, with the help of police she
was rescued from her matrimonial house and went to her
parental house. She had lodged complaint on 03.07.2015
before Mahila Prakoshth Rajnandgaon. She also lodged FIR
in the police station, Rajnandgaon.
11. In her affidavit under order 18 Rule 4 C.P.C. also, the
details of the incident have been given and particularly the
incident of assault on 28.06.2015 and she having sustained
multiple injuries on her body. In support of this, the appellant
led in evidence reliable documentary evidence in the form of
Doctor Mulhaija (medical examination) Ex-D/4, FIR, various
complaints etc. The medical examination report clearly spelt
out multiple injuries on various parts of the body of the
appellant. Though these injuries are not grievous but there
were multiple injuries found on her body upon her medical
examination on 04.07.2015.
12. We find that the learned trial Court disbelieved the
aforesaid oral and documentary evidence by holding that as
per the case of the appellant she was assaulted on
28.06.2015 whereas the medical examination report dated
04.07.2015 shows that the injuries could be caused within 72
hours, that means, on or after 01.07.2015. Only on this
discrepancy, the learned Court has completely disbelieved
and set at naught specific pleadings and evidence with
regard to cruelty committed on the appellant.
13. In our considered opinion, the finding of the learned trial
Court cannot be sustained in law. While appreciating the
evidence, oral and documentary in nature, the learned trial
Court has applied principle of proof beyond reasonable doubt
ignoring that it is not a case where the husband was being
tried for commission of offence punishable under the Indian
Penal Code or any other penal law.
In civil proceedings, the standard of proof applied is
preponderance of probability and not proof beyond
reasonable doubt. The learned Court below had committed
serious illegality in appreciating and scrutinizing the evidence
led by the wife in support of her cause that she was
subjected to physical violence and cruelty. The medical
evidence clearly shows that the wife was subjected to assault
and which has been reflected from multiple injuries. Slight
variation with regard to the exact period within which such
injuries could be caused, would not render her entire
statement liable to be disbelieved. It is a clear and admitted
position on record and also reflected from the evidence that
the appellant/wife was rescued from the matrimonial house
with the help of police only on 02.07.2015 and medical report
Ex-D/4 clearly depicts that the injuries was caused on her
prior to 02.07.2015. The margin of 2-3 days is always
possible because the duration of injury could not be stated
with exactitude and precision. It is not a case that injuries
were found to be caused after she was rescued from
matrimonial house i.e. after 02.07.2015.
14. One single incident of physical violence on the wife caused
by the husband is sufficient to constitute reasonable excuse.
At this stage, we are not going into other allegation of cruelty
but of assault on the wife soon before she was rescued from
the matrimonial house which clearly proves that she was
subjected to cruelty.
15. In order to constitute reasonable cause, the wife is not
required to prove that she was subjected to repeated assault
of physical violence or that degree of such violence was very
high. A minimal assault of physical nature may, in a given
case, constitute a reasonable excuse for the wife to refuse to
cohabit with the husband. No wife can be expected to
discharge her marital obligation and cohabit her husband
who has been subjected to physical violence irrespective of
the nature and degree thereof.
16. A husband who treats his wife as chattel/property and
subjects her to physical violence is not entitled to indulgence
of the Court by granting him decree of restitution.
17. In the result, we are unable to uphold the impugned
judgment of decree of restitution of conjugal rights granted in
favour of respondent/husband. In the result, the appeal is
allowed.
18. The impugned judgment of decree is set aside and the
respondent application for restitution of conjugal rights is
dismissed.
19. Let appellate decree be accordingly drawn.
Sd/- Sd/-
(Manindra Mohan Shrivastava) (Vimla Singh Kapoor)
Judge Judge
Yasmin
