DAYARAM T. ASWANEY Vs. VEENU

JUDGEMENT

(1.) This is an appeal from the decision given by the learned Judge of the City Civil Court, in M.J. Petition No. 5521 of 1974. The petition was the wife's petition for restitution of conjugal rights. By his judgment and order, which is impugned in the appeal, the learned Judge granted decree for restitution of conjugal rights and also directed the Appellant husband to pay to the respondent wife maintenance at the rate of Rs. 400 per month from Jan., 1980 onwards. He also directed payment of Rs. 1,000 as costs. Aggrieved by the decision the appellant husband has preferred this appeal.

(2.) Mr. Chhaya on behalf of the appellant has submitted that the Trial Court misdirected itself as to the scope of Sec. 9 of the Hindu Marriage Act, 1955. According to his submission, it is clear established from the evidence that it was the Respondent wife who had withdrawn from the society of the Appellant husband and if that be established then there was no warrant for passing decree for restitution of conjugal rights in her favour. He has drawn my attention to paragraphs in the judgment of the trial Court in which according to him the onus has been wrongly shifted on the Appellant husband.

(3.) The fact however remains that both in paragraph 11 of the Written Statement as well as in evidence (paragraph 27 page 164 of the Paper Book) the Appellant husband has categorically stated that on no account he is willing to take back the wife. It would appear to me that in July, 1973, there were quarrels and misunderstanding between the couple as a result of which there was separation. It is not the Appellant husband's case that after such separation he made efforts to bring back the wife but she resisted them or did not comply with his request to return. Indeed he appears to have made no effort to get back the wife. In Jan., 1974 the wife moved the City Civil Court for restitution of conjugal rights and in reply to that petition we find the husband categorically stating in his written statement that it is not possible for him to live with the wife.