TUKARAM RAGHO MATI Vs. RADHABAI

JUDGEMENT

(1.) There is no merit in this Second Appeal preferred by the husband against his wife. The appeal arises out of an application filed by the appellant against the respondent under section 9 of the Hindu Marriage Act for restitution of conjugal rights on July 23, 1970 in the Court of the Civil Judge, Senior Division, Kolhapur. The case of the appellant was that the marriage took place in the year 1956, and, therefore, it the year 1965, the respondent left her husband without his consent and without any reasonable cause and went to reside with her maternal uncle at Miraj. According to his case, the appellant made a couple of attempts to bring her back to his house but without any success, and, therefore, he was entitled to a decree of restitution of conjugal rights. This application was resisted by the respondent by her written statement contending inter alia that the appellant had married his sisters daughter about two years back and was residing with her. She further contended that on December 30, 1969, she had sent a notice to the appellant claiming maintenance, and as he refused to accept the notice, she has filed a suit in the Court of the Civil Judge, Junior Division, Jaysinghpur, for maintenance. According to her, the appellant has initiated the present proceedings only with a view to avoid payment of maintenance and harass her. The trial Court allowed the appellants application and passed a decree for restitution of conjugal rights in his favour. Aggrieved by this decision, the respondent preferred an appeal in the District Court. On a consideration of the evidence on record, the learned Assistant judge allowed her appeal holding that the appellant had failed to establish that the respondent had withdrawn from his Company without any reasonable cause. He also held that the respondent had establish her case that the appellant had not only married his sisters daughter but also had a child from him born on June 22, 1971 during the pendency of the matrimonial petition in the trial Court. The learned Judge did not believe the appellants case that he had made attempts to bring the respondent back to him. Having failed in his appeal in the District Court, the appellant has preferred this second appeal.

(2.) It was urged by Mr. Page, the learned Advocate appearing for the appellant that the facts and circumstances of this case show that the respondent had deserted the appellant without any reasonable cause in the year 1963, and in spite of the appellants attempt to bring her back, she avoided to come and reside with him. He submitted that the respondent has failed to prove that the appellant has married his sisters daughter.

(3.) The facts found by the learned Assistant Judge are that since prior to the date of the filing of the petition by the appellant, he admittedly brought his sisters daughter in his house and had a child from her born on June 22, 1971. The learned Judge rightly observed that it would be difficult to believe that the appellant would keep his sisters daughter as a mistress particularly when the appellant had in his house his old mother, who was the only other member in the family, and the relationship between the parties would suggest that he must have married his sisters daughter and brought her to his house. The learned Judge held that having regard to the facts and circumstances, it was highly unlikely that he would keep her merely as a mistress. Although, therefore, there is no direct evidence led by the respondent to prove the marriage, the circumstances on record justify the inference drawn by the learned Judge. This is a finding of fact based on evidence and the circumstances on record and cannot be disturbed in a second appeal. In any event, admittedly his sisters daughter was with him since before the filing of the petition and continued to stay with him even after the filing of the petition, and she also gave birth to a child in June 1971. Even assuming, therefore, that the valid marriage between the two is not established, the evidence clearly shows that the appellants sisters daughter was living with him as his mistress. As held by the learned Judge, if she is described as a mistress then he would be guilty of adultery and the wife would be entitled to refuse to go and stay with him. Taking any view of the matter, therefore, it must be held that the respondent had a just and valid excuse to refuse to say with him. The learned Judge was right in holding that the appellant was not entitled to restitution of conjugal rights.