NIRMALA DEVI Vs. SHANTI LAL AWADHANE

JUDGEMENT

(1.) This appeal by the appellant/wife against the judgment and decree dated 1-5-1984 passed by the Sixth Additional Judge to the Court of District Judge, Jabalpur, in Civil Suit No. 8-A of 1982 for restitution of conjugal rights under Sec. 9 of the Hindu Marriage Act on the ground that the appellant had deserted the respondent, who is her husband, on 25-6-1978. The marriage between the appellant and the respondent took place on 13-3-1974. However, the appellant, after having cohabited with the respondent for some time, it is alleged, deserted her husband, which led to institution of Civil Suit No. 9-A of 1977 for restitution of conjugal rights. An ex parte decree was passed in favour of the respondent in the above referred suit on 5 4-1977. However, during the restitution proceedings, the parties entered into a compromise on 19-8-1977 and the present appellant/wife and the respondent/husband lived together till 25-6-1978 when it is alleged by the respondent/husband that the appellant/wife had deserted him again. The learned trial Court, on the basis of the evidence on record, granted a decree for restitution of conjugal rights in favour of respondent/husband. It is against this judgment and decree that the present appeal has been filed.

(2.) The learned counsel for the appellant/wife submitted that the trial Court completely fell in error in placing burden of proof on the appellant, overlooking the evidence with respect to the cruelty tendered on behalf of the appellant. It was vehemently argued that the burden of proof under Explanation to Sec. 9 of the Hindu Marriage Act was on the respondent/ husband particularly when the case of the appellant was that the respondent had left her in her house and that she did not voluntarily leave the company of the respondent. The learned counsel also drew my attention to para 3 of the deposition of the appellant, who has been examined as N.A.W. 1. to show that the respondent had left her in the house of her mother with the assurance that she would be taken back within eight days by the respondent. The learned counsel also referred to the deposition of A.W. 4 Sayamma, who was working as maid servant with the respondent, to show that she could throw any light on the circumstances which led the respondent to have the appellant in her mother's house. The learned counsel also referred to the deposition of the husband A.W. 1 Shantilal to emphasise the fact that the appellant did not desert her husband but had been left at her mother's place by her husband. It was also pointed out from the testimony that although it is said that the respondent/husband had made a report in the police regarding desertion of the appellant, the same has not been produced in the case. The learned counsel for the respondent/husband. however, supported the decree and submitted that the findings recorded by the trial Court are based on the evidence on record.

(3.) Having heard the arguments advanced on behalf of the parties on either side, in my opinion, there is no substance in this appeal. So far as the contention that the appellant was being treated cruelty is concerned, there is no evidence on record to sustain that there was any cruelty Perusal of the testimony of N A W. 1 Nirmala shows that her husband Shantilal had given her a beating which resulted in abortion in the hospital of Dr. Chatterji, but her evidence is not corroborated by any evidence on record It was necessary for the appellant to have examined the doctor who had treated her for abortion. The further testimony that she was prevented from applying Sindur or wearing Mama/ Sutra is also not corroborated by any evidence on record. On the contrary, the evidence tendered on behalf of the respondent/ applicant/husband is consistent and clinching to show that the appellant had withdrawn the company of her husband voluntarily. Apart from the evidence of A.W.-1 Shantilal, the respondent has also examined his younger brother Kamlakar Rao as A.W. 2, who, apart from the fact of stating that the appellant was being treated normally, she was not prepared to stay along with her husband, since both were residing with their brother, father and mother. A.W.-3 Tarabai, who is mother-in-law of the appellant has also denied any cruelty to the respondent. A.W. 4 Sayamma has stated that the appellant had run away from the house, although he could not say, why and where she had gone.