Madhya Pradesh High Court
Smt.Sunita Singh Tomar vs Anil Singh Tomar on 8 August, 2024
Author: Vivek Rusia
Bench: Vivek Rusia
1 FA-180-2012
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI
ON THE 8 th OF AUGUST, 2024
FIRST APPEAL No. 180 of 2012
SMT.SUNITA SINGH TOMAR
Versus
ANIL SINGH TOMAR
Appearance:
Shri Prakhar Dhengula - Advocate for the appellant.
ORDER
Per: Justice Rajendra Kumar Vani
This first appeal has been filed by the appellant/wife being aggrieved
by the judgment dated 30.9.2011 passed by the Principal Judge, Family
Court, Gwalior, in Case No.471-A/2009 H.M.A. whereby the application
under Section 9 of the Hindu Marriage Act filed by the respondent/husband
for restitution of conjugal rights has been allowed.
2 . Facts of the case in brief are that respondent/husband filed an
application under Section 9 of the Hindu Marriage Act stating therein that on
22.6.2004 his marriage was solemnized with the appellant as per Hindu rites.
Out of their wedlock in September 2007 one son Vedant was born. On
3.5.2009 the appellant without the permission of the respondent and his
parents went to her parental house at D.R.P.Line Bahodapur along with the
ornaments given by parents of the respondent in the marriage. When the
2 FA-180-2012
parents of the respondent informed him in this regard, he called the appellant
and sent his father to bring back appellant, then father of the appellant replied
that as and when respondent would come on leave, he will send his daughter
along with him. When the appellant did not come back even after various
attempts, the respondent informed his officer who sent a junior officer along
with the respondent to his matrimonial house in June 2009 but even then, the
appellant and her parents did not send her back. Thereafter on 2.9.2009
respondent tried to bring appellant back but she denied. On 11.9.2009
respondent sent a notice through counsel, but no reply has been given and the
appellant without any sufficient cause denied to come back to live with the
respondent. Then he filed this application for restitution of conjugal rights.
3 . The appellant filed reply denying the allegations levelled by the
respondent and submitted that respondent neither performed his conjugal
duties nor properly maintained her. Her parents as per their capacity spent a
sum of Rs.3,00,000/- in the marriage and as per demand gave house hold
articles in the marriage. She could not live in the matrimonial house
comfortably even for a day. Behaviour of the parents of the respondent was
never well towards her and she was mentally and physically tortured. She
was expelled from the matrimonial house on 1.1.2007 without any sufficient
reason. She is ready and willing to live with the respondent as his wife if no
mental and physical torture would be meted out to her on account of bringing
less dowry in the marriage. She gave birth to a child on 19th September,
2017 in Bansal Hospital in which a sum of Rs.20,000/- was spent by her
Signatureparents, but no help was made by the respondent. The respondent is not
Not Verified
Signed by: MADHU
SOODAN PRASAD
Signing time: 13-08-2024
03:29:33 PM
3 FA-180-2012
maintaining her and her child well. Nobody came to bring her back from her
parental house and prayed to dismiss the application.
4 . The trial Court after framing necessary issues and recording of the
evidence of the rival parties, allowed the application of the respondent under
Section 9 of the Hindu Marriage Act. Hence, this appeal by the wife.
5. It is submitted by learned counsel for the appellant/wife that marriage of
the appellant was solemnized with the respondent on 22.6.2004 as per Hindu
rites. Appellant is residing with her parents since December, 2006. In
September, 2007 one son Vedant was born who is residing with the
appellant. In December, 2006 respondent and his family members without
any cause expelled her from her matrimonial house. The appellant has lodged
a complaint at Mahila Police Thana Padav, Gwalior and to save him from the
police proceeding, respondent has filed this application under Section 9 of
the Hindu Marriage Act on frivolous ground. She is ready to live with the
respondent, but he himself is not ready to keep her with him. She has threat
to life from the respondent and his family members. Therefore, prayed to set
aside the impugned order dated 30.9.2011 and to reject the application under
Section 9 of the Hindu Marriage Act.
6. Having heard learned counsel for the appellant, perused the record.
7. Anil Singh Tomar (AW-1) and his father Yadunath (AW-2) remained
intact on the statement that after 3.5.2009 appellant/wife started living with
her parents and is not willing to come to live with the respondent/husband.
When on 2.9.2009 respondent reached parental house of appellant/wife, she
Signaturehas
Not denied
Verified to come with him, then he has issued a notice through his counsel
Signed by: MADHU
SOODAN PRASAD
Signing time: 13-08-2024
03:29:33 PM
4 FA-180-2012
on 11.9.2009, but no reply of that notice has been filed by the respondent.
8 . Though appellant in her evidence denied the allegations and stated that
she has been living with her parents since 1.1.2007 while she averred that in
December, 2006 she has been ousted by the respondent. She further stated in
her statement that she tried to reside with her in-laws, but they did not permit
her to reside with them. But it is not explained by this witness that on which
date, month and year she tried so. She also stated that she has lodged FIR two
times, but she admits that copy of such reports has not been filed by her. It is
also pertinent to mention that appellant/wife stated that she had given reply
of notice sent by the respondent, but no copy of such reply or any
documentary evidence of sending it to the respondent has been filed.
9. The perusal of the trial Court record reveals that the parties have been
referred to counselor and counselor Smt. Kamlesh Sharma had facilitated
counselling. A copy of the document dated 23.12.2009 is on record which
reveals that husband (respondent) is serving in military. He has a government
quarter in Jodhpur, Rajasthan and he is willing to stay there with wife and
child and also willing to bear all expenses and to maintain them in dignified
manner, however, wife is not ready to live with the husband and she is
willing to live separately in Gwalior. This report of counselor reveals that
appellant/wife herself is not willing to live with the husband/respondent.
10. The fact further ratifies from the record of this appeal. It is mentioned
in the order-sheet dated 17.2.2024 that appellant is not interested in
compromise. Again on 13.12.2014 when the matter was placed before the
SignatureLok Adalat, it is stated that settlement is not possible.
Not Verified
Signed by: MADHU
SOODAN PRASAD
Signing time: 13-08-2024
03:29:33 PM
5 FA-180-2012
11 . The evidence on record, report of the counselor as well as attempt for
compromise/reconciliation between the parties by this Court shows that
appellant herself is not willing to live with the respondent. The learned trial
Court has concluded on various issues after lawful appreciation of the
evidence and rightly found that the appellant/wife is not willing to live with
the respondent/husband without any sufficient cause, therefore, the judgment
and decree under Section 9 of the Hindu Marriage Act has been appropriately
passed in favour of the respondent/husband. There is no ground to interfere
in that judgment and decree.
12. Accordingly, this appeal is dismissed being bereft of merit.
(VIVEK RUSIA) (RAJENDRA KUMAR VANI)
JUDGE JUDGE
ms/-
