ARAJ KUMAR JAIN Vs. VIMLA DEVI JAIN

JUDGEMENT

(1.) This is an appeal under Sec. 28 of the Hindu Marriage Act against the decree for restitution of conjugal rights passed on a petition presented for that purpose by the respondent wife.

(2.) There is no dispute that the parties were married to each other according to Hindu rites and there was a valid marriage subsisting when the petition for restitution was filed. In defence, the husband/appellant pleaded that the respondent/wife treated him, his mother and the nephew cruelly and that she was living in adultery. The evidence adduced at the stage of trial consisted of certain documents and the oral evidence but looking to the charge levelled the lower Court has found that the appellant could not substantiate the defence pleaded. I have also gone through the evidence and I am in complete agreement with the lower Court for the view taken. About adultery, there is no evidence, at all. The allegations in this behalf were introduced in the written statement only by an amendment and all that has been stated is that the respondent/wife used to go with certain unknown person. In paragraph 3 of his deposition, the appellant as NAW I has stated that he had forgotten to take the plea of adultery in the original written statement and this fact of adultery revealed only after he had seen those documents. What those documents are still not known. In my opinion, the charge of adultery has not been proved, at all. As to cruelty, the appellant deposed that the respondent tried to commit suicide and tried to add poison in the milk taken by the appellant. E .wept his mere statement, there is nothing else to substantiate this charge. There is also no evidence that the respondent tried to beat appellant's mother and turn her out of the house. He has clearly stated that so long as the respondent lived with him in his house, no incident took place nor did he make any report of any such incident. The paragraph 10 of his deposition, he has spoken of the beating of his mother and nephew by the respondent. Harlal (NAW 3) has tried to corroborate the appellant's version as to respondent's attitude somewhere after two or three days of the Diwali of the year 1979. The appellant himself has not deposed about any such incident. The evidence of this witness contains only a very casual statement which in opinion, is not sufficient to bring home the charge of cruelty. Evidence of Tej Bahadur (NAW 5) is no better. There is no documentary evidence to support these charges. A document (Ex. D/l) was relied upon by the learned counsel for the appellant in support of the charge of adultery. That document seems to be the outcome of an earlier litigation between the parties for divorce. In my opinion, the document does not contain any admission of adultery by the respondent as was suggested by the learned counsel for the appellant. Even if it were to be so construed, the conduct of the respondent was condoned by the appellant and reconciliation was brought about. That document, there- fore, is of no avail to establish the charge of adultery. Agreeing with the lower Court, I hold that the appellant could not establish that the respondent was living in adultery or that she treated the appellant or his mother or nephew with cruelty so as to deny restitution of conjugal rights to the respondent.

(3.) Shri P.P. Naolekar, learned counsel for the appellant argued that even if the appellant has not been able to establish the defence pleaded, this was a fit case where decree for restitution of conjugal rights should be refused as it was not possible for the parties to live together and have a happy home. It is true as a proposition of law that even if grounds existed for awarding a decree for restitution of conjugal rights, the Court in exercise of its discretion is not bound to pass such a decree if there was no possibility of a happy re-union. I See : Smt. Alopabui Vs. Rrmphal, (A.I.R. 1962 M.P. 211) and Babu Rao Vs. Mst. Sashilu Bai, (A.I.R. 1964 M.P. 73) ]. In the present case, I am not satisfied that discretion should be exercised in denying the restitution of conjugal rights. It was suggested that after the appellant has levelled a charge of adultery against the respondent and cherished a strong belief in that behalf and also obtained the document (Ex. D/l) from the respondent, it will not be possible for them to live happily together. Learned counsel also pointed out that during the proceedings before the lower Court, the appellant suspected that the respondent was pregnant from some other person and asked her to be medically examined. In my opinion, this self-serving statement made by the appellant in his own favour will not help in resisting the decree for restitution of conjugal rights. These believes entertained by the appellant have been found to be absolutely false and groundless. The respondent was examined by a competent doctor soon after her examination was proposed during the proceedings before the lower Court. The charge was found to be absolutely baseless and the respondent was found not pregnant. The adultely alleged could also not be substantiated. In my opinion, the husband who goes to the extent of levelling absolutely false charges of adultery or the like against his wife, cannot be heard to say that because of his such ill-founded beliefs the legitimate decree for restitution of conjugal rights to which the wife is otherwise entitled under the law, should be denied to her. Such a person cannot ask the Court to exercise any discretion in his favour. Instead, such plea resulting in serious consequences ought to be taken with great care and on sound footing and any person much less an Advocate like the appellant (the appellant is a practising Advocate at Chattarpur) should only be condemned and not helped for taking such pleas which ultimately turn out to be baseless. In my opinion, therefore, the appellant is entitled to no discretion as is claimed on his behalf.