PREM SINGH Vs. SM. DULARI BAI AND ANOTHER

JUDGEMENT

(1.) These two appeals are preferred by the husband against the judgment and decree of the trial Court refusing restitution of conjugal rights and allowing the wife a child's custody briefly, in the following circumstances. The petitioner-husband, who is the present appellant, made an application for restitution of conjugal rights against the respondent No. 1, Dulari Bai. His case, briefly, is that he married the respondent No. 1 according to Hindu rites in the month of Feb., 1955 at a place known as Terhiparha within P. S. Kharagpur, District Midnapore. After their marriage they continued to live as husband and wife when a daughter was born who, however, subsequently died. Thereafter, another daughter Sukundraj and a son Kishen Singh were born out of their wedlock. Although, they lived happily for a number of years as husband and wife, the respondent No. 2, the mother of respondent No. 1, a woman of questionable character in conspiracy and collusion with others forcibly took away the respondent No. 1 with her baby daughter, from his house with the help of Police. In spite of requests and demands the opposite party No. 1 failed to return to the matrimonial home and thus the petitioner was entitled to restitution of conjugal rights.

(2.) The proceeding was contested by both the respondents Nos. 1 and 2. Apart from the general denial of material allegations, their specific case was that the petitioner-appellant was of Gurkha tribe and the respondents were of chetri caste and thus it was not at all possible to solemnize a marriage between them. The appellant Prem Singh, it is further alleged, was married with one Mangala Bai formerly who was now living with her one son and one daughter at the house of the appellant. Three sons and four daughters were born out of their wedlock, formerly and most of them died. The respondent No. 1, though passed her days with the appellant in his house for about six years, was ill-treated subsequently by the appellant, his mother and his former wife, Mangala Bai and as a result of such oppression and tortures she was brought to the house of the opposite party No. 2 under compelling circumstances. It is alleged that respondent No. 1 is not the married wife of the petitioner who was lawfully married at her tender age long back in Rajasthan. The further case of the respondents was that as there was no lawful marriage between the appellant and the respondent No. 1, he had no right also to keep the son of the respondent No. 1 in his custody and he was not entitled to any restitution of conjugal rights. An application for custody of the son Kishen Singh was filed by the respondent No. 1 which was also opposed by the appellant.

(3.) Upon the pleadings in the matrimonial proceeding several issues were framed and the appellant examined four witnesses including the appellant himself and on behalf of the respondents, three witnesses were examined including the respondent No. 1. The learned Court below found that the petitioner was a Nepali and as he was not a domiciled Indian he could not have invoked the provisions of the Hindu Marriage Act, 1955 and therefore his application was not maintainable under Sec. 9 of the Act. On the issue relating to the question of marriage, the learned Court below found as a fact on evidence that although the appellant and respondent No. 1 lived together as husband and wife for 6/7 years and several children were born to them they were not lawfully married and further that in any case the appellant was guilty of ill-treatment to the respondent No. 1, so much so that it was impossible for her to return to the appellant and to live with him there without apprehensions of danger to her safety and security and accordingly dismissed the application. That is how in short the husband appellant felt aggrieved and preferred the present appeal.