DULARI Vs. SURESH CHAND

JUDGEMENT

(1.) This is a first appeal from a decree for restitution of conjugal rights under the Indian Divorce Act, 1869. Notwithstanding their Hindu names, the parties are Christians and even so they appeared to be utterly rustic and illiterate, when I talked to them in an attempt to bring about a reconciliation. The attempt failed because the appellant said that she may be cut to pieces but she would not go back to live with the respondent-husband. The marriage would seem to have broken down completely beyond any chance of repair. The appellant is at present living not with her parents but with another man Brahma by name, whom she has married, according to the respondent husband's own allegation, notwithstanding the subsistence of the marriage between the parties. And yet, the respondent husband says, he is keen to have her back. I could not understand this attitude of the respondent-husband. So I asked him to explain the reason why in spite of this infidelity of the wife, to which he had sworn, he was keen to have her back and had not asked for divorce or judicial separation even after coming to know of it. I was not made any the wiser for it. Of course, the appellant wife does not admit that she has remarried Brahma but the lower court has, on an appraisal of the evidence, come very near to finding that she has, and having talked to the appellant-wife, and a stray word which escaped her while replying to a question put by me, I think that she is living as Brahma's wife, although there has been no proper marriage between them. Indeed, there could be no marriage between them so long as the marriage between the parties subsists. That stray word, which escaped the appellant, while talking to me, was her description of Brahma's younger brother. This fact also explains why the appellant's parents appear to have forsaken her, by not appearing in support of her case, of which the learned District Judge has made a point for rejecting her uncorroborated testimony. For reasons which shall presently appear I do not quite agree with the learned District judge on that, as a ground for rejecting her version and accepting the respondent-husband's case on the merits, and decreeing restitution of conjugal rights, and that too with the knowledge that the decree would not be obeyed, as the appellant wife had categorically stated before the learned District judge also, that she was not willing to return to the respondent husband at any cost.

(2.) The parties were married on 25th May 1978. According to the husband's case the wife lived with him at his place for about a week after the marriage, when, her father, who was originally impleaded as the second respondent, took her away along with gold ornaments weighing about 2 tolas, silver ornaments weighing about 100 tolas, and clothing worth about Rs. 1000.00. The wife has not come back in spite of repeated calls by the husband. There was no reason, and now the wife refuses to come and live with him and fulfil her marital obligations. This was followed by the allegation that the wife was under the influence of respondents Nos. 2 to 5 who wanted to marry her to respondent No. 5 to the petition that was originally filed in the District Court. Respondent No. 2 was the wife's father, and respondent no. 3, the latter's wife, or to put it directly, the appellant-wife's mother. Respondents Nos. 4 and 5 were Ramman and his wife Katoria. Their exact relationship is not clear from the petition. Respondent No 6 was the very same Brahma or Birma, with whom the appellant was, it was alleged later on, living as a wife. Their motive was said to be the desire to misappropriate the ornaments and clothes presented by the husband at the time of marriage. It was even alleged that they were making improper gain from the earnings of the appellant wife, who it was said was living sometimes at the residence of her father and at other times at the residence of Brahma. The petition was presented on 10th Oct. 1979. There was no direct allegation of adultery against the appellant wife, and even if her conduct amounted to desertion, the necessary period of two years had not elapsed on the date of the petition, so as to have entitled the husband to judicial separation. This seems to be the reason why the relief claimed was restitution of conjugal rights.

(3.) Birma or Brahma, the 6th respondent to the petition, was the first to file a written statement. He denied the only allegation which concerned him in the petition, and the only additional plea raised was that the petition was filed out of enmity. The next written statement filed was by the appellant-wife's father and mother, the respondents Nos. 2 and 3 to the petition. They denied the allegations against them. They also pleaded that the wife had been to the husband's house thrice after the bida and that after the appellant-wife's third departure from their house for the husband's place with him, the appellant-wife had not returned to their house, though she had left the husband's place. They further stated that the appellant wife was not living with them and that they did not want to marry her to the 6th respondent, and that they had come to know from the husband that the fifth respondent who was his own uncle had taken the appellant-wife with him. Lastly they pleaded that goods worth about Rs. 3000.00 presented by them had remained with the husband. The respondents Nos. 2 to 6 were discharged from the petition on the husband's own application by order dated 11th July 1980. The appellant wife filed her written statement thereafter on 30th Aug., 1980.