KAUR SINGH Vs. BALBIR KAUR ALIAS HEERO

JUDGEMENT

(1.) THIS appeal is by the unsuccessful husband whose petition under Section 9 of the Hindu Marriage Act (hereinafter called the 'Act') before the trial Court with the allegation that the Respondent wife had withdrawn from his society without any reasonable excuse was dismissed. The reason for this withdrawal as disclosed by him was that though he is living separately from his brother Zora Singh to whom the elder sifter of the Respondent is married, yet the Respondent wanted to lie in the house of Zora Singh and he was not agreeable to this The Respondent wife, while refuting these allegations of the Appellant, maintained that, as a matter of fact, she had been given beatings repeatedly and was turned out of the house about three years prior to the filing of the application It was also pointed out by her that the cause for this trouble was that the Appellant suspected her fidelity and wrongly believed that she was carrying on with Zora Singh She also pleaded that during the course of ten years of their wedded life, she only gave birth to a female child and the Appellant had suggested to her to kill that child but since she was not agreeable to this, the Appellant and his family members did not like her presence in the house. The trial Court, after appreciating the evidence on the record, has recorded the conclusion that the Appellant turned the Respondent out of his house after giving a beating Having been taken through the evidence on the record and the contents of the pleadings, I find it difficult to reconcile with the conclusion recorded by the lower Court.

(2.) BY now it is well settled that in view of the newly added explanation to Section 9 of the Act, the burden of proving a reasonable cause to live away from the society of the complaining spouse, is on the party who has withdrawn from the society. His well established on record and is rather admitted by the Respondent that the two spouses are living away from each other for more than three years prior to the filing of the application The sole question which needs to be determined is whether the Respondent had been turned out of the house after giving a beating or mal -treatment as alleged by her or she was not willing to stay in the house of the Appellant and rather wanted to stay in the house of Zora Singh, brother of the Appellant. In support of her stand that she, as a matter of fact, had been turned out of the house after giving a beating, the Respondent seeks support from the statements of Dr. Janak Raj R. W -3 and Zora Singh R.W.4. The evidence of the last mentioned two witnesses does not inspire any confidence. This Janak Raj, the so called doctor, claims to have obtained a diploma in Homoeopathy (Medicines and Surgery) from the Homoeopathic Medical Board, Patna. On the basis of this certificate he claims to have obtained a licence as a Homoeopath in the year 1974. He also claims that he is maintaining a regular register for outdoor and indoor patients who are treated in his clinic at Suratgar (Rajasthan). He also admitted about the maintenance of a cash book wherein the account of the feel charged by him has been maintained During the cause of cross -examination, he admitted that he had neither brought the so -called diploma obtained by him from Homoeopathy Medical Board, Patna, nor any other document including the indoor and out -door patients register, cash book, etc. Rather as per his admission during the cause of cross -examination he was not possessed of any document which could indicate that he had given any treatment to the Respondent for the injuries which she is alleged to have received at the hands of the Appellant.

(3.) SO far as the statement of Respondent herself is concerned, she has deposed, besides the above noted receipt of the injuries, that she was asked by the Respondent to kilt her daughter as he and his family members did not like the birth of a female child According to her all this had been put in black and white as the Appellant desired all this by writing a letter to her. This letter has, however, not been produced. I am thus satisfied that the version put forth by the Respondent is not true and cannot possibly be accented to have been established. There being no other explanation on her part for living away from her husband, the Appellant is undoubtedly entitled to the relief claimed by him.