RAJESH SURANA Vs. REKHA

JUDGEMENT

(1.) THE appellant in the above appeals is the husband of the respondent. THE marriage between them took place at Chennai on 21.02.2000 as per Hindu Customs and ceremonies. Out of the wedlock, a son was born on 07.08.2001. On 09.08.2001 the respondent was discharged from the hospital and from there she went to her parental home. At the end of September 2001, she was taken by the appellant to the matrimonial home. On 18.05.2002 the respondent left the matrimonial home to her parental home. Contending that though the respondent and his family members were affectionate towards the respondent and the child and she was treated well by them, at the pressure and influence of her parents, she had left the matrimonial home without any sufficient cause, the appellant filed O.P.No.697 of 2003 under Section 9 of the Hindu Marriage Act, 1955 before the Principal Family Court, Chennai, for Restitution of Conjugal Rights.

(2.) PENDING OP No.697 of 2003, the respondent / wife filed O.P.No.1601 of 2003 under Section 13 (1) (i)(a) of the Hindu Marriage Act, seeking a decree of divorce or in the alternative grant a decree for judicial separation under Section 10 of the said Act. In her petition, the wife alleged the following acts of cruelty against her husband in the above appeal:- (i) The appellant and his family members demanded and harassed her to bring more dowry. (ii) Even on the date of marriage itself the mother of the appellant demanded that the appellant and the respondent should be sent for their honeymoon to a foreign country. (iii) The husband / appellant is a drunkard. (iv) The appellant suspected the respondent's chastity and character and she was subjected to undergo AIDS test (HIV Test). (v) The appellant restrained his wife / respondent from interacting with her parents and relatives. (vi) The appellant masturbated in her presence and denied to have intimacy with her which amounted to cruelty. (vii) The appellant did not care for her and the child in not bringing her back to the matrimonial home immediately after delivery.

(3.) IN the counter filed by the respondent, the respondent / wife interalia contended as follows:- (i) Only because of the persistent demands for dowry made by the appellant and his family, she had withdrawn from the society of her husband and living separately. For extracting dowry, they have subjected her to severe harassment and mental cruelty. Because of their harassment she even attempted to commit suicide on one occasion. The respondent left the appellant's home only to safeguard her son and herself. She has also filed a complaint with W-8 Secretariat Colony Police Station against the appellant and his family members for dowry harassment. (ii) IN the year 2000, when the marriage proposal was initiated by elders, there was no specific demand for dowry by the appellant's family. At the time of marriage, the respondent took with her about 1600 grams of gold, a diamond set of about 4.25 carets, 16 Kilograms of silver jewellery and articles, and cash of Rs.60,000/-. The entire marriage expenses was borne by the respondent's family. (iii) At the marriage ceremony itself, the appellant's mother demanded the respondent's father to sponsor a honeymoon for the couple to a foreign country, which could not be acceded to by her father. At the very first night of the marriage the appellant entered the room in an intoxicated state and the appellant tried to force her to consume alcohol, but she stoutly refused to consume, as she is a teetotaler. Thereafter, they proceeded to Moonar and Kodaikanal for their honeymoon. At the honeymoon, the appellant clearly stated that he decided to run a jewellery store in Chennai and for that a minimum of Rs.12 to 15 lakhs is needed and he is unable to mobilise such funds and hence he decided to marry her presuming that he could start the said business with the dowry brought at the time of marriage, but the dowry that was brought was not sufficient and so he was disappointed and unhappy. After their return to Chennai, the appellant and his mother demanded that her father should establish a jewellery store for the appellant, but the said demand was politely refused by the respondent's father, as he could not afford to set up a separate jewellery shop. Thereafter the appellant started openly calling the respondent as his "name sake wife". The appellant as well as his family members started applying pressure for her on obtaining more dowry and the appellant would deliberately lose his temper at her even for minor issues and would also physically assault her. Knowing fully well that she dislikes alcohol, the appellant harassed her by returning home at night in an intoxicated condition. (iv) It is further alleged by the respondent that as his demand for further dowry was refused, he started refusing any intimate contact with her and when she sought an explanation, the appellant started claiming that she was suffering from AIDS. This wild allegation humiliated her and pained her. Under extreme pressure, the appellant agreed to undergo necessary AIDS test and the AIDS test was done at Diagnostic Center at Burkit Road, T.Nagar, and reports were negative, and in September 2000, totally upset by the above conduct of the appellant, she went to her parental home and took an overdose of Alprex tablets in an attempt to commit suicide. Since she was immediately taken to the nearby hospital and treated there, she was saved and she returned back to the matrimonial home, but even thereafter the harassment and nagging did not stop. (v) According to the respondent, the appellant directed that she should not interact with her family any more and he refused permission to her to visit them and directed not to contact her parents even over telephone. Even if the respondent's family members tried to contact her over phone, she was not allowed to talk with them. Around this time, she became pregnant and when the same was informed to the appellant, he immediately doubted her fidelity and he even commented that he had not done anything to cause pregnancy. Only when she threatened to undergo paternity test, the harassment stopped. As per the tradition, at the seventh month of the pregnancy, the appellant directed that a function be held and he demanded to send money and gifts by her family and the function was to be held around May " June 2001. As per the tradition, her family sent atleast 200 gift articles and about 50 boxes of sweets, but they refused to send further cash. This totally enraged the appellant and the function itself was called off by the appellant. It is alleged by the respondent that the appellant often came home late at night totally intoxicated merely to harass her. On First of July 2001, she was allowed to go to her parent's home for delivery and on 07.08.2001 a male child was born. Even after being informed about the birth of the son, he refused to visit the respondent, but only at the advise of elders and common family friends, he came to hospital to see her and the child. IN the First Week of December 2001, the sister of the appellant was to be married and the respondent's presence was necessary to perform certain rituals and under pressure, the appellant took her and the son to the matrimonial home in the first week of September 2001. On 29.11.2001, the respondent's parents and family met with an accident and the said news was conveyed over phone to the appellant, who in turn informed the respondent, but the respondent was not allowed to leave the home to see her parents and after great persuasion, she was permitted to visit them. After returning to the matrimonial home, the respondent tried to reason out the appellant, but the appellant reiterated that he would not permit her to maintain any contact with her family until she brought the dowry demanded. (vi) The appellant started losing his temper more often and physically assaulted her at every given opportunity. She was insulted in the presence of her family members. The appellant totally refused any intimacy with her and with an intention of harassing her, he was deliberately masturbating in her presence. The conduct of the appellant put her to severe embarrassment and torture. When the respondent resisted the behaviour of the appellant, he stated that he would stop this type of behaviour only if she brought the dowry to set up a jewellery store. Until about mid May 2002, she remained in the matrimonial home hoping that there will be a change in the appellant's attitude, but the appellant did not change his attitude and on 18.05.2002 the respondent's parents sought permission of the appellant to take her home to a family function and the respondent sought leave of the appellant, without any provocation the appellant slapped her in her face in the presence of rest of the family and stated that she should leave the matrimonial home immediately and she should never ever return. Totally hurt and emotionally upset, the respondent left the matrimonial home on 18.05.2002. According to the respondent, the appellant and his family members never attempted to reconcile with her or bring her back to the matrimonial home. The attempts made by the elders of the Jain community and the common friends of the two families to reconcile the parties also failed to reunite them. According to the respondent, the marriage between her and the appellant has irretrievably broken down. The withdrawal of the respondent from the matrimonial home is only as a result of the aforesaid conduct of the appellant. The respondent had even lodged a Police Station with W-8 Secretariat Colony Police Station, Chennai, against the appellant and his family members in respect of the dowry harassment meted out by her. According to the respondent, she is afraid for her life and safety and if she is directed to stay with the appellant and his family, they would cause permanent harm or hurt to her. (vii) It is further alleged by the respondent that the appellant would deliberately take the child away from her for long hours in order to restrain her from feeding the child on time and this was done only to coerce her to bring dowry from her parents. If Restitution is ordered, the appellant may make use of the child as a means to coerce her to withdraw the criminal complaint lodged against him and his family. (viii) The respondent has denied various allegations made by the appellant in his petition. According to the respondent, her family members never ever attempted to influence or intervene the matrimonial affairs of the couple. She has stated that the allegation that she was unhappy whenever she went to her parental home or that she was depressed is totally false. The attempts made by family elders and friends to reunite the couple is admitted, but, according to the respondent, only because of the persistent demand for dowry by the appellant, such attempts failed. On the aforesaid contentions, the respondent has sought for dismissal of the petition for Restitution of Conjugal Rights and has prayed for divorce.