DHRUBA LAL BHATTACHARYYA Vs. SMT. CHINU BHATTACHARYYA

JUDGEMENT

(1.) - This appeal is by the plaintiff against the judgment and order dated 10.9.1990 passed by the learned District Judge, Nagaon in Title Suit No. 4 of 1989. By the impugned order the petition filed by the present appellant for restitution of conjugal rights was dismissed.

(2.) There is not dispute that defendant-respondent is the wife of plaintiff appellant and they have one son and one daughter and that the marriage took place on 27.5.1984. It is also not disputed that at that time plaintiff-appellant was in military service. Plaintiff took voluntary retirement from service and thereafter he was residing in the house of his wife at Jagiroad and started a cycle shop. As the business failed plaintiff-appellant came back to his house at Samuguri in Dec., 1987. According to plaintiff-appellant at that time he requested defendant-respondent to accompany him to Samuguri but on different pretexts she refused to do so and also kept both the son and daughter with her. It has also been alleged that after coming he requested his wife several times to come to Samuguri but she in collusion with her brother and father refused to join him at Samuguri. Thereafter, on 20.4.88 the plaintiff-appellant sent a Lawyer's notice without any result. Plaintiff-appellant has alleged that respondent-defendant has withdrawn from the society of the plaintiff-appellant without any reasonable excuse and hence the petition for restitution of conjugal rights, and also custody of the minor son and the daughter.

(3.) The suit was contested by the defendant-respondent and has stated that the plaintiff-appellant is not entitled to any relief. According to defendant-respondent the plaintiff-appellant never took her to his original house and used to reside in the house of the father at Jagiroad. It has been stated that as the petitioner was in military service and in his absence, parents of the defendant-respondent and her brothers used to look after her. And after retirement the plaintiff-appellant resided at her parent's house and started the cycle shop with money given by her brothers. In the written statement it has been stated that after a few days the plaintiff-appellant deserting, the defendant-respondent filed a petition under Sec. 125 Code Criminal Procedure for maintenance for herself and their children which was registered as MR Case No. 38 of 1988 in the Court at Morigaon. It has been alleged that after coming to know about this case the present petition has been filed only to harass defendant-respondent. It has also been stated in the written statement that the plaintiff-appellant filed a false criminal case in the Court at Morigaon being CR Case No. 887 of 1988 and in that case all the belongings of the defendant-respondent were seized but given in her zimma. The revision petition filed by the plaintiff-appellant was also dismissed. It has been denied that the defendant-respondent has withdrawn herself from the society of the petitioner and it has been alleged that it was the plaintiff-appellant who deserted the defendant-respondent and her children has filed this false case in order to avoid the payment of maintenance. A specific statement has been made that had the plaintiff-appellant any intention of co-habitation with the opposite party he could have come and resided with the defendant-respondent at her house at Jagiroad.