Chattisgarh High Court
Mahendra Kumar Sen vs Smt. Sarita Sen on 15 January, 2025
Author: Rajani Dubey
Bench: Rajani Dubey
1
2025:CGHC:2517-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Judgment reserved on: 11.12.2024
Judgment delivered on: 15.01.2025
FA(MAT) No. 157 of 2022
1 - Mahendra Kumar Sen S/o Shri Balaram Sen Aged About 35 Years R/o
Village Tilda - Neora Tehsil Tilda District - Raipur (Chhattisgarh)
...Appellant
versus
1 - Smt. Sarita Sen W/o Shri Mahendra Sen D/o Banvasi Sen @
Chandrashekhar Shrivas Aged About 31 Years R/o Prem Nagar
(Bhairotal), Village - Surakachhar, Kusmunda Tahasil - Katghora, District -
Korba (Chhattisgarh)
... Respondent
For Appellant : Mr. J.N. Nande, Advocate
For Respondent : Mr. Sunil Sahu, Advocate
Hon'ble Smt. Justice Rajani Dubey,
Hon'ble Shri Justice Bibhu Datta Guru
C A V Judgment
Per Rajani Dubey, J.
1. This appeal is directed against the judgment and decree dated
07.07.2022 passed by the learned Principal Judge, Family Court,
Raipur, Chhattisgarh in Civil Suit No. 505/2017 whereby the
application filed under Section 9 of the Hindu Marriage Act by the
appellant/husband for restitution of conjugal rights, was rejected.
2. Before learned trial Court, it is an admitted fact that the marriage
between the parties was solemnized on 28/04/2015 in Jain Gagal
Bhawan, Nevra Ward No. 10 Nevra Tilda as per Hindu rites and
rituals. From their wedlock, a daughter namely Ms. Dalshri was born
on 06/07/2016 in Sony Hospital Tulsi Nevra. At present, both the
parties are living separately.
3. Appellant/husband filed application under Section 9 of Hindu
Marriage Act for restitution of conjugal rights before the trial Court on
this ground that after marriage, they both lived at Tilda Nevra. For
about 1 year, the married life of both the parties went well, but for the
last 8-9 months, the respondent/wife started quarrelling with the
appellant/husband and went to her maternal home. The
respondent/wife used to refuse the appellant/husband to bear the
expenses of the education of the appellant's elder sister and her
daughter, the education of the younger sister's daughter and family
expenses. The respondent/wife was more inclined towards her
maternal home. She used to go to her maternal home almost every
day and used to ask for money to spend at her maternal home. The
behaviour of the respondent/wife was very rude towards the parents
of the appellant, his elder sister and their children. Respondent/wife
did not like the appellant's elder sister. The respondent/wife used to
tell the appellant/husband to take a separate house and live there.
He further stated that the respondent/wife remained on rest for
four months after delivery, thereafter the father, brother and sister-in-
law came to take her and on 16/11/2016, respondent/wife quarreled
with the appellant/husband and went to her maternal home. The
respondent/wife repeatedly pressurized the appellant/husband to
stay away from his family. Being fed up, the appellant/husband
called a meeting of social persons. The social persons got a written
agreement of settlement between the appellant and the respondent
on 14/12/2016, by which both of them assured to live their married
life with mutual love and affection. Thereafter, the respondent/wife
returned to the appellant's house, but after two days, i.e. on
16/12/2016 at 9:30 a.m., she took her daughter along with her and
left the house of the appellant. When the respondent/wife and her
daughter were not at home, the appellant inquired from the father of
the respondent and then he got to know that the respondent and the
child had returned to their home. Thereafter, the appellant again
applied into the society to bring the respondent back home. Thus, it
is clear that the respondent/wife is unnecessarily troubling the
appellant and the appellant is getting disturbed due to her frequent
visits to her maternal home and the appellant's married life is getting
affected. The appellant loves his daughter and wife very much. The
appellant's conjugal rights are being violated due to the rude
behavior of his wife. The respondent is deliberately living separately
from the appellant without any sufficient reason to mentally harass
the appellant. Therefore, his application filed under Section 9 of the
Hindu Marriage Act may be allowed.
4. In her reply, except the admitted facts, the respondent/wife has
denied all the averments made by the appellant/husband and stated
that the appellant's parents are healthy and earning. The appellant's
father works as a barber in the village and from which, he use to
earn about Rs. 15,000/- per month. The applicant's elder sister
herself runs a beauty parlor shop and earns Rs. 10,000/- per month
by massaging women in the locality. In this way, the appellant's
sister is capable of maintaining herself and her daughter financially.
The respondent has never stopped the appellant from spending on
his family. The appellant's sister used to beat her and appellant used
to support her sister for the said act. She further averred that in the
social meeting, the sister of the appellant touched the feet of all the
persons present and apologized and swore not to harass her in
future, but after third day of the settlement, the sister of the appellant
again started harassing her to which, the appellant ignored and
supported his sister. After sending the respondent to her maternal
home, till date, he has never gone to take her, nor has he held any
social meeting, nor has he made any application in any society. The
respondent filed an application under Section 125 of Cr.P.C. before
the Family Court, Katghora and vide order dated 07.06.2017, the
Court directed the appellant to pay monthly maintenance amount of
Rs. 3,000/- to the respondent and her daughter. To avoid this, the
appellant has filed an application under section 9 of the Hindu
Marriage Act before the trial Court in August 2017. If the appellant
had wanted to stay with her, he would have himself gone to his in-
laws' house and tried to bring her back. He has filed this application
only to harass her. Therefore, the application filed by the appellant
under section 9 of the Hindu Marriage Act, is liable to be rejected.
5. Learned trial Court after appreciating the oral and documentary
evidence, by its judgment and decree dated 07.07.2022 dismissed
the application filed by the appellant/husband. Hence, this appeal
has been filed by the appellant/husband.
6. Learned counsel for the appellant/husband submits that the learned
Principal Judge of Family Court Raipur has ignored the material
evidence available on record and passed the erroneous judgment in
a mechanical manner, contrary to the material available on record.
The learned trial Court ought to have considered that the appellant
has made all crucial efforts to resume the conjugal relationship with
the respondent/wife but all efforts of the appellant have turned futile
due to rigid and rude behavior of the respondent and she deserted
the matrimonial home without any justifiable reason, therefore the
impugned judgment is bad in law, hence it is liable to be dismissed.
The learned trial Court has constantly ignored the material fact that
the respondent even did not produce any reliable evidence to prove
her untruthful/fabricated statements even she didn't show any
reason as to why she left the matrimonial home. The appellant has
deposed his evidence categorically that he is always willing to reside
together with her wife but the learned trial Court overlooked the
statements of the appellant and passed the erroneous judgment
against the appellant.
He further submits that the learned trial Court did not
appreciate the oral and documentary evidence and gave wrong
finding which is not sustainable in the eye of law. Therefore, the
impugned judgment is liable to be set aside and respondent/wife be
directed to reside with the appellant/husband and continue the
conjugal relationship with him.
7. On the other hand, learned counsel for the respondent/wife
supports the impugned judgment and submits that the learned trial
Court minutely appreciated the oral and documentary evidence and
rightly dismissed the application filed by the appellant/husband.
Hence, this appeal being without any merit is liable to be dismissed.
8. Heard counsel for the parties and perused the material placed on
record including the impugned judgment.
9. It is not disputed in this case that the marriage between the parties
was solemnized on 28.04.2015 and from their wedlock, one child
was born on 06.07.2016 and it is also not disputed that the
respondent/wife is living separately with the appellant/husband since
2016. In pursuance of the order dated 07.06.2017 passed by the
learned Family Court, Katghora, the appellant/husband is paying
maintenance of Rs. 3,000/- per month to the respondent/wife and
her daughter.
10. Appellant/husband examined himself as A.W.-1 to support his case
against the respondent/wife whereas respondent/wife examined
herself as N.A.W.-1 and her sister namely Lata Shrivas as N.A.W.-2.
11.Appellant/husband stated that the respondent/wife left his home
without any sufficient cause. He admitted this suggestion that the
respondent/wife had made proposal to him that if he resides in
Bilaspur then she is ready to live with him. He also stated that on
14.12.2016, he called the society meeting. Appellant filed an affidavit
of Muleshwar Prasad Shrivas, President of Society but he did not
appear before the trial Court for cross-examination.
12. In her affidavit, respondent/wife stated that she is living separately
because of cruel nature of her sister-in-law and she stated that if her
husband stays away from her in-laws at places like Bilaspur or
Raigarh or Champa and gives a written assurance of behaving well
in future then she is ready to live with him.
13. Sister of respondent/wife, Lata Shrivas (N.A.W.-2) also stated that
the in-laws of the respondent misbehaved with her sister, therefore,
she does not want to live with them. However, she admitted that they
did not lodge any FIR against appellant- Mahendra Kumar Sen.
14. Close scrutiny of statements of both the parties makes it clear that
the respondent/wife only because of nature of sister-in-law towards
her, did not want to live with her husband and she also stated in her
affidavit that if the appellant lives in Bilaspur or Raigarh or Champa,
then she is ready to live with him. For ready reference, para 13 of
affidavit of respondent/wife is reproduced herein under:-
"13. यह कि यदि मेरा पति बिलासपुर या रायगढ़ या चाँपा आदि स्थानों पर मेरे
ससुराल से दूर रहे और भविष्य में ठीक से बर्ताव करने का लिखित आश्वासन दे,
तो मैं उसके साथ रहने को तैयार हूँ। अन्यथा नहीं ।"
15. As per appellant- Mahendra Kumar Sen, he is an Assistant
Teacher in Village Tilda Nevra. So, it is not possible for him to live
with his wife at any other place. It is evident from the record that the
appellant is trying to live with his wife whereas the respondent has
failed to prove that she is living separately due to some sufficient
reason and reasonable cause. The learned trial Court only
considering the pleadings in maintenance application that the
respondent is living separately due to some sufficient reason,
allowed the maintenance application in favour of the
respondent/wife. It is only thereafter that the appellant filed an
application under Section 9 of the Hindu Marriage Act. It is well
settled principle of law that in the proceeding under Section 125 of
Cr.P.C., the learned trial Court has to inquire summarily only. Before
the learned trial Court, appellant has proved this fact that he is
working at Raipur and he is willing to keep his wife along with him
whereas the respondent/wife is willing to live with him at Bilaspur or
Raigarh or Champa.
16. Section 9 of the Hindu Marriage Act provides as under:-
"9. Restitution of Conjugal Rights- [***] When either the
husband or the wife has, without reasonable excuse,
withdrawn from the society of the other, the aggrieved party
may apply, by petition to the district court, for restitution of
conjugal rights and the court, on being satisfied of the truth of
the statements made in such petition and that there is no
legal ground why the application should not be granted, may
decree restitution of conjugal rights accordingly."
17. The facts and circumstances of the present case reflect that the
attempts were made by the husband to save his matrimonial
relationship. However, the learned trial Court only on the ground that
the respondent has proved the sufficient cause of her living
separately from the husband, arrived at the conclusion that the
appellant/husband is not entitled for grant of decree of restitution of
conjugal rights and passed the impugned judgment in favour of the
respondent/wife by dismissing the application filed by the
appellant/husband for restitution of conjugal rights.
18. Looking to the statements of both the parties, facts and
circumstances of the case, the entire evidence available on record
as well as the conduct of the wife, we find that the respondent/wife is
living separately from the appellant/husband without any sufficient
cause. Thus, the findings recorded by the learned trial Court are not
sustainable.
19. In the result, the appeal stands allowed. The impugned judgment
and decree dated 07.07.2022 are set aside. Respondent/wife shall
go to the house of the appellant/husband and perform her
matrimonial duties/obligations.
20. Let a decree be drawn up accordingly.
Sd/- Sd/-
(Rajani Dubey) (Bibhu Datta Guru)
Judge Judge
Ruchi
RUCHI YADAV Digitally signed
by RUCHI YADAV
