KANCHAN MALHOTRA Vs. YASHVIR SINGH

JUDGEMENT

(1.) This is the defendant's appeal against the trial Court's judgment and decree whereby, the plaintiff's claim under section 9 of the Hindu Marriage Act for restitution of conjugal rights has been decreed.

(2.) Both the parties are Hindus and are, admittedly, governed by the Hindu Marriage Act. The case of the plaintiff Yashvir Singh (respondent) as was briefly pleaded by him was that he and the defendant Smt. Kanchan (present appellant) were married at Bhopal on 5-1-1982 according to the Hindu rites; and that Smt. Kanchan had lived with him and the marriage was consummated (para 1 of the plaint). According to him. after the marriage his wife viz. the present appellant defendant was taken forcibly out of Bhopal' (para 2 of the plaint). The cause of action for the suit was stated to have arisen in the last week of Jan., 1982 and the first week of Feb., 1982 when the wife (defendant) did not observe conjugal rights (para 5 of the plaint). Hence, decree for restitution of conjugal rights was claimed. The defendant Mst. Kanchan filed her detailed written statement totally denying the plaint allegations. The factum of marriage was denied by her and so also the fact that she ever lived with the plaintiff or that the marriage was consummated. It was equally denied that she was ever forcibly taken away out of Bhopal.

(3.) The trial Court relying on the evidence of the office-bearers of Arya Samaj, Bhopal and the corroborative evidence of some persons, who had attended the marriage in the Arya Samaj Mandir, held that the parties were lawfully married according to Arya Samaj rites in Arya Samaj Mandir, Bhopal on 5-1-1982. Ex. A-l, the photostat copy of the marriage certificate issued by Arya Samaj, Bhopal was admitted by way of secondary evidence and was implicitly relied on by the trial Court, on being satisfied that the original together with the connected records were somehow missing from the office of the Arya Samaj Mandir, Bhopal. The trial Court accordingly decreed the claim against the defendant Mst. Kanchan for restitution of conjugal rights. The defendant, being aggrieved, has now preferred the present appeal.