BITTO Vs. RAM DEO

JUDGEMENT

(1.) THIS is a wifes Second Appeal from a decree for restitution of conjugal rights that was passed against her originally by the Court of the Civil Judge, Shahjahanpur on the 29th October, 1979 and was confirmed on the 28th Aug. 1980 by the Court of the Fifth (Fourth?) Addl. District Judge. Shahjahanpur, on appeal. The following are the questions which were formulated at the hearing of the appeal under Order 41 Rule 11 of the Code of Civil Procedure, in this Court : -

(2.) THE petition in this case made by the husband who is the respondent in this Court, is a strange amalgam of two self -contradictory or mutually exclusive and opposite remedies provided by Sections 9 and 13 of the Hindu Marriage Act. Just below the title the petition specifies Secs.9 and 13 of the Hindu Marriage Act, suggesting thereby, though without saying so expressly, that it was a petition made for relief under Secs.9 and 13 of the Hindu Marriage Act. The first paragraph of the petition states that the petitioner was married to the appellant on the 28th April, 1977 in accordance with Hindu customary rites. The second paragraph states that the petitioner and the appellant were Hindus at the time of marriage and continued to be Hindus. The third paragraph states that the petitioner is a Token -porter in the Railway Department and followed a regular life. The fourth paragraph states that the appellant is living separately for the last nine months with her parents. The fifth paragraph states that the petitioner himself, his younger brother Nem Chand and mother went to call the appellant many a time but she did not listen to them and on the last occasion finally refused to come. The sixth paragraph states that the appellants father wanted to marry her again elsewhere to which she was agreeable. The seventh paragraph states that the appellant deliberately and without any cause refused to live with the petitioner. There was no ground for her refusal. Paragraph 8 states that the petitioner was in Government service and was in great need of a wife for his living, therefore, the need for the suit. The ninth paragraph states that the petitioner and the appellant both are young. Therefore, to maintain good conduct, it was necessary to resolve their mutual relations. Paragraph 10 states that the appellant intends to marry again. Therefore, the petitioner apprehended danger to his life and property from her. Paragraph 11 states that the character of the appellant is growing suspicious because in spite of advice she has not given up her intention of marrying again. Paragraph 12 states that the petitioner and the appellant were within jurisdiction of the Court and, therefore, the Court had jurisdiction. Paragraph 13 states that the valuation of the petition was Rs. 300/ - and the court -fee paid was Rs. 37 -50 P. The relief prayed for was; (a) that the petitioner may be granted against (the appellant) Bitto alias Shyamwati a decree under Sec.9 or 13 of the Hindu Marriage Act; (b) costs; and (c) any other relief.

(3.) I am surprised that the case so set out in the petition, ever went to trial. The petition was liable to be rejected for not disclosing a cause of action and for not being properly framed. That was the first objection taken. In the additional pleas. The second objection taken by the appellant in the additional pleas in her written statement was that a case under Sec.125 of the Code of Criminal Procedure for maintenance was pending in the Court of the Chief Judicial Magistrate. Shahjahanpur, and the 28th February, 1979 was the next date fixed therein. The next plea taken in the additional pleas was that the petitioner was a gambler and drunkard and spent all his salary in these evil habits and had even wasted all the jewellery of the appellant on drinks and gambling. It was next pleaded that because of these habits the petitioner beat the appellant and compelled her to bring money which she had no means of doing and ultimately she was turned out after being beaten in December, 1978. The next plea was that the appellant never refused to perform the conjugal rights. On the other hand, it was the petitioner who did not attend to the appellant even during her illness and turned her out of the house. In the next paragraph, it was stated that the appellant had suffered cruelty at the hands of the petitioner and he did not even now want to keen her. It was next stated that she had no intention of marrying again. The cause of the petition was said to be the petitioners desire to save himself from the claim for maintenance and to harass the appellant. It was then said that the petitioner never maid any maintenance nor did he ever come to take the appellant. It was added that the appellants parents were very poor and were unable to maintain her and she had no source of income. The petitioner was only harassing her in this manner. The last plea was that the petitioner was not entitled to any relief and the petition was liable to be dismissed with costs.