Smt. Neha Thakur vs Durgesh Thakur
2022 Latest Caselaw 6564 Chatt

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                                                                      AFR

             HIGH COURT OF CHHATTISGARH, BILASPUR

                         FA(MAT) No. 35 of 2021


1.    Smt. Neha Thakur W/o Durgesh Thakur, Aged About 23 Years, R/o
      Through Heera Singh Thakur, House No. 750, Madhuban Nagar,
      Borsi, Durg Tahsil And District Durg (C.G.).

                                                             ---- Appellant
                                   Versus

1.    Durgesh Thakur S/o Balmiki Thakur, Aged About 31 Years, R/o 13 th
      Battalion, Indian Reserve E-Company, Police Line, Durg District
      Durg (C.G.) Permanent R/o Village And Post Rajoli, Police Station
      Ranchirai, Tahsil Gunderdehi, District Balod (C.G.) Present Address
      Office Of Commandant 13th Battalion, Chhattisgarh Arms Force,
      Bango, District Korba (C.G.).

                                                           --- Respondent

For Appellant : Mr. T.K. Jha alongwith Mr. Tapan Kumar Chandra, Advocates.

For Respondent : Mr. Purnendra Khichariya, Advocate

Hon'ble Shri Justice Goutam Bhaduri Hon'ble Shri Justice Radhakishan Agrawal

Judgment on Board Per Goutam Bhaduri J.

03/11/2022

1)     Heard.

2)     The present appeal is against the judgment and decree dated

26/07/2021 passed by the Family Court, Durg (C.G.) in Civil Suit

No. 39A/2017 whereby a decree for restitution of conjugal rights

under Section 9 of the Hindu Marriage Act, 1955 (in short "the Act,

1955") was passed in favour of the husband. Therefore, the instant

appeal by the wife.

3) The admitted facts are that marriage in between the parties took

place on 24/12/2015. Thereafter, according to the husband, the wife

stayed at her matrimonial home for some period of time but

subsequently she went back to her parental home on the pretext

that she had to prepare and appear in B.Ed. Examination. The

husband also joined the wife at her parental home where they

stayed for sometime and again came back to her matrimonial

home. Meanwhile, the wife became pregnant and first abortion was

carried out at the instance of the sister, parents, brother-in-law.

While she was carrying the second pregnancy she was sent to her

parental home and thereafter she has not returned. The husband

alleged that without any lawful cause the wife has withdrawn the

company of the husband and on that ground Section 9 application

was filed.

4) Per contra, wife stated that she was subjected to torture for

demand of dowry and cruelty. It was stated that since the husband

was in the Police service/government job, the husband including

the family members, all of them, treated the wife with cruelty for

demand of dowry and Rs. 3 Lakh asked for. The wife further

alleged the first pregnancy was terminated for the reason that she

was severely beaten and was kicked on her abdomen. She further

stated that while she was carrying second pregnancy, she was not

given due care and even necessary nutritious food, which was

required, was not given. Consequently, she had to come to her

parental home and while coming because of her weakness, she

got fainted. It is further stated that because of the demand of

dowry and cruelty meted out to her, she filed a complaint with the

Police for which a case under Section 498-A of IPC is registered

against the husband which is pending.

5) Before the learned Family Court both the husband and wife

examined themselves. The learned Family Court after evaluating

the facts and evidence decreed the suit in favour of the respondent

husband. Hence, this appeal by the wife.

6) Learned Counsel for the appellant/wife would submit that case

under Section 498-A of IPC is pending adjudication, therefore,

there is sufficient ground for wife to stay apart. He further submits

that even the case under the Domestic Violence Act is also

pending which would go to show that reason for not in the

company of the wife with the husband as she was forced to stay

away. He further submits that an application under Section 125 of

Cr.P.C. is also being filed for which huge arrears still remains. He

further submits that as per law laid down by the Supreme Court in

the matter of Justice K.S. Puttaswamy (Retd.) and Another Vs.

Union of India and Others, (2017) 10 SCC 1, that the personal

choice and privacy of a person is required to be protected and as

an essential facet of dignity of human being. He submits that if the

wife is being subjected to torture she cannot be forced under

Section 9 to join the company of the husband and she has all the

right of privacy to protect her to refrain to stay away from the

company of the husband. Therefore, the order under Section 9 of

the Hindu Marriage Act for restitution of conjugal rights is required

to be set aside.

7) Per contra, learned Counsel for the respondent husband would

submit that without any valid reason the wife withdrew the

company of the husband. He submits that the analysis of

statement of the husband and wife which are read together would

show that there no sufficient reason still exists for the wife to stay

away. He would submit that only on the flimsy ground the wife

withdrew the company of the husband. Therefore, the learned

Family Court after evaluating the facts have come to a conclusion

to pass a decree under Section 9 of the Hindu Marriage Act for

restitution of conjugal rights, therefore, the order is well merited

which do not call for any interference.

8) We have heard learned Counsel for the parties and perused the

pleadings and evidence.

9) The pleadings and evidence would show that after marriage

between the parties on 24/12/2015 the wife stayed for some time

at her matrimonial home, thereafter she had to appear in an exam

and came to her parental place where the husband also joined.

Subsequently, after the examination she joined back her

matrimonial home wherein she complained that she was subjected

to torture for demand of dowry. Perusal of the statement of the

husband shows that before filing the application under Section 9,

the wife has filed a report with the Police, Durg, complaining the

cruelty for demand of dowry and the case is still pending. Perusal

of the statement of husband further shows that after the report was

made, two counsellings took place but the fact would suggest that

since the criminal case was filed subsequently, no result was the

outcome of counseling. Likewise, in the statement of the wife, she

maintained the stand that she was subjected to torture and

pressure was created to fulfill the demand of money. She further

stated that because of the fact the demand was not fulfilled, while

she was carrying first pregnancy she was kicked at her abdomen

which resulted into mis-carriage. While in respect of the second

pregnancy, he stated that she was subjected to torture for demand

of dowry, as such she was forced to go to her parental place to

save her life.

10) During the course of submission, on a query being made to the

parties, it is submitted that the case under Section 498-A of IPC

and Domestic Violence Act are still pending before the Judicial

Magistrate, Durg. It is further stated that the charges have been

framed in such criminal case and as a consequence the trail has

commenced. Therefore, if prima facie, the Judicial Magistrate

found the charges are required to be framed as per the statement

of the wife and the other witness then until the case is adjudicated,

in our considered view, erasing the allegation of cruelty at this

stage would amount to pre-judge the entire issue. Facts may

unfold the trial and as a consequence it may result into conviction

or acquittal, but these facts cannot be pre-judged by this Court.

Prima facie as on date the charges have been framed in a criminal

trial, the presumption of cruelty would follow unless demolished in

trial. Consequently, if the wife has withdrawn from the company of

other whether it was a justifiable cause or not can be arrived at

after conclusion of the trial. As of now, considering the pendency of

criminal case, it would not be justifiable for the Court to press upon

the appellant to join back to the company of the husband and if the

cruelty really exists then it may have a serious repercussion to

force the appellant wife to join the company of husband. It is a trite

law that the act of the Court cannot harm or prejudice the right of

any individual. In the backdrop of the fact that the criminal cases

are pending against the husband under Section 498-A of IPC, we

do not consider it proper to continue the order of restitution of

conjugal rights.

11) In view of the foregoing discussions, the judgment and decree

passed by the Court below is set aside. Accordingly, the appeal is

allowed.

                    -Sd/-                            -Sd/-
              (Goutam Bhaduri)               (Radhakishan Agrawal)
                   Judge                            Judge



Chandrakant