TAVAWWA Vs. CHINNAPPA MALLAPA BALAMATTI

JUDGEMENT

(1.) This is a defendant's Second Appeal and arises out of proceedings started by the respondent against the appellant for a decree for restitution of conjugal rights under section 9 of the Hindu Marriage Act, 1955. The Courts below have concurrently held that the appellant has withdrawn from the society of the respondent without any reasonable excuse and have accordingly granted a decree in favour of the respondent for restitution of conjugal rights.

(2.) The appellant and the respondent who are permanent residents of Jamkhandi Taluka, were married about eight years prior to 6/11/1956 the marriage; disputes arose between them subsequently and as a result the appellant withdrew from the company of the respondent and went away to her parent's house and refused to rejoin the respondent to give him conjugal happiness and comforts. The respondent, therefore, instituted proceedings under section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights by presenting a petition to the District Court, Bijapur. The said petition was transferred by the District Judge for trial and disposal to the Civil Judge (Senior Division) Bijapur. The appellant resisted the petition. It is not necessary to recite the various allegations on which she resisted the petition. It is enough to state for the purposes of this appeal that the main defence of the appellant was that she was cruelly treated by her parents-in-law while she was with the respondent and was forced to abandon her husband and run away to her parent's place for safety. The respondent denied the acts of cruelty and ill-treatment. The parties adduced their evidence to substantiate their respective contentions. The learned Civil Judge (Senior Division) Bijapur held that the appellant had failed to establish cruelty and ill-treatment; that she had no reasonable grounds or excuses to withdraw from the society of the respondent and there was absolutely no legal grounds why the decree for restitution of conjugal rights as prayed for by the respondent should not be granted. He accordingly decreed the suit for restitution of conjugal rights against the appellant. The appellant challenged the correctness and legality of the decision of the learned Civil Judge (Senior Division), Bijapur by preferring an appeal to the District Judge Bijapur. One of the legal grounds taken by the appellant in the memorandum of appeal filed by her in the Court of the District Judge was that the learned Civil Judge (Senior Division) Bijapur had no jurisdiction to try and dispose of the petition arising under the Hindu Marriage Act, 1955. It was alleged that since the Civil Judge (Senior Division) Bijapur was not exercising ordinary jurisdiction over Jamakhandi Taluka where the parties were living, he had no jurisdiction to try the application presented by the respondent for restitution of conjugal rights under section 9 of the Hindu Marriage Act, 1955. The learned District Judge rejected the contention as untenable. He held that by virtue of the power given to it under Section 3(b) of the Hindu Marriage Act, 1955, the Government of Bombay had issued a Notification No. H. M. A.. 1055/52067 dated 1st September 1955 specifying the Courts of the Civil Judge, (Senior Division) as having jurisdiction in respect of matters dealt with in the said Act with in their respective jurisdiction and in view of the specification it is idle for the appellant to contend that the learned Civil Judge (Senior Division) Bijapur who was exercising jurisdiction (special) in respect of such suits and proceedings of civil nature as may arise within the local jurisdiction of the Courts in Bijapur District presided over by Civil Judge (Junior Division) and wherein the subject- matter exceeds the pecuniary jurisdiction of the Civil Judge (Junior Division) as defined in section 24 of the Bombay Civil Courts Act, 1896 had no jurisdiction to decide the case. The learned District Judge further held that the appellant had failed to establish cruelty and ill-treatment and that she had without reasonable excuse withdrawn from the society of the respondent. He accordingly confirmed the decree for restitution of conjugal rights against the appellant. It is against this judgment and decree passed by the learned District Judge Bijapur that this Second Appeal has been presented by the appellant.

(3.) The fact that the appellant and the respondent are Hindus and were legally married about years prior to the date of the presentation of the petition by the respondent under section 9 of the Hindu Marriage Act, 1955 is not disputed. It is also not disputed that the appellant withdrew from the society of the respondent about two years after the marriage and has been living with her parents ever since till the date of the petition. The Courts below have concurrently held that the defence of the appellant that because she was subjected to ill-treatment by her parents-in-law she was compelled to withdraw herself from the society of the respondent and run away from his house to the house of her parents for safety has not at all been established. This being a finding of fact cannot be interfered with in this Second Appeal.