PARKASH CHANDER Vs. PARMESHWARI

JUDGEMENT

(1.) This appeal is directed against the judgement and decree dt. 31-71985 of the learned Additional District Judge (3), Kurukshetra, whereby he allowed an application under S.9 of the Hindu Marriage Act, 1955 (hereinafter called 'the Act') filed by Smt. Parmeshwari respondent and passed a decree for restitution of conjugal rights against Parkash Chander appellant.

(2.) A petition under S.9 of the Act was filed by the respondent on 29-1-1982 alleging therein that marriage between her and Ishwar Singh, brother of the appellant, was solemnised at village Barsana, district Kurukshetra, according to Hindu rites and customs in the year 1959. Ishwar Singh was employed in the Indian Army at the time of marriage. He became lunatic during his service and consequently was discharged from the Army in the year 1961. Thereafter, he remained unheard of for more than 7/8 years and was still unheard of at the time of filing of the petition and was presumed to be civilly dead. No child was born from her womb from the loins of Ishwar Singh. A suggestion/proposal was put to her parents by the appellant's parents and his near relations that she should enter into a karewa marriage with him - he being the real brother of Ishwar Singh. This proposal was accepted by her as a usual custom in the community and consequently Karewa marriage was performed between her and the appellant in November, 1969 at village Kaul, district Kurukshetra. Due ceremonies were performed as required for completing the marriage as a legal one and it was accepted by the appellant. After solemnisation of the marriage, it was alleged that the parties started living together as husband and wife at village Kaul and cohabited as such. Out of their wedlock a son named Surinder Singh was born on 24-2-1971 at village Barsana. In 1971 the appellant was employed as Agricultural Inspector at Gurgaon. He started taunting the respondent that she was an illiterate lady and he could get himself re-married with some educated and cultured girl. He also started misbehaving with her and she wrote letters to this effect to her parents. On receipt of these letters, her parents approached the appellant's parents in their house at village Kaul accompanied by some respectables of the locality, brotherhood and relations on 5-11-1972 and requested the appellant not to misbehave with her in future and maintain her as his legally wedded wife but he did not accede to these requests and turned her out of his house in three clothes without reasonable cause or excuse along with the above said Panchayat retaining all the jewellery etc. and the child with him. It was alleged that the child was still with the appellant. A deed to this effect was reduced into writing by the Panchayat. Thereafter, the respondent's parents approached the appellant and his parents many a time but without any tangible result. She addressed letters to the higher authorities of the department of the appellant. Out of fear of any action by the higher authorities against him, the appellant's father approached the respondent's brother in June, 1976 to settle the matter. The brother of the respondent visited village Kaul and also entered into correspondence with Shri Ishwar Singh Ex.-M.L.A. on 25-10-1979. She also addressed a letter to the Agriculture Minister, Haryana, and other concerned authorities but without any fruitful result. She thus prayed for a decree for restitution of conjugal rights requiring the appellant to rehabilitate her.

(3.) The appellant contested the petition. Besides raising preliminary objections to the effect that there was no relationship of husband and wife between him and the respondent; that she was the wife of Ishwar Singh - his elder brother, who was still alive and there had been no divorce of the lawful marriage between her and Ishwar Singh and thus their marriage was still subsisting; that the petition was highly belated and the delay itself spoke volumes about falsehood and manipulations which had culminated into the petition, on merits, the averments made by the respondent in her petition were controverted. It was denied that the whereabouts of Ishwar Singh were not known and he was presumed to be civilly dead. It was further denied that Ishwar Singh became lunatic during the period of his service. It was, however, admitted that he was discharged from service in the Army on his request. It was further stated that subsequent to his discharge from the Army, Ishwar Singh got admission in B.Ed. classes at Chandigarh in 1962. Later in 1963 he got admission in M.A. English course in the Kurukshetra University. He remained employed as a teacher at the Janta High School, Kaul, during the period 1965-66 and he was living at his residence at village Kaul along with the respondent which fact is well known to her. It was vehemently denied that Ishwar Singh was unheard of for 7/8 years since 1961 or that he was still unheard of at the time of filing of the petition. The appellant denied as incorrect the allegation made by the respondent that she entered into Karewa marriage with him. He asserted that no such lawful marriage could take place during the lifetime of Ishwar Singh. The custom of Karewa marriage of a woman in the community during the lifetime of her first husband was denied. It was further asserted that there was a difference in age of the appellant and the respondent of nearly 20 years. The alleged ceremony of the Karewa marriage was also denied. It was further asserted that the respondent was living at village Kaul after marriage with Ishwar Singh till November, 1972. It was denied that Surinder Singh was born out of the wedlock between the parties. It was instead asserted that Surinder Singh was born to the respondent from the loins of Ishwar Singh on 1-9-1969 at village Barsana - the parental place of the respondent. It was further stated that as Ishwar Singh developed into a mental case in the year 1971, he was examined by Dr. Vidya Sagar and later on was got admitted in the Punjab Mental Hospital at Amritsar under the orders of the Sub Divisional Magistrate, Kaithal, dt. 1-7-1971. The parents of the respondent taking undue advantage got false birth entry of Surinder Singh recorded in their village showing him to be the son of the appellant. It was further stated that the appellant was a student and he had good prospects in life. The respondent and her parents tried to pressurise and entrap the appellant to accept her as his wife because Ishwar Singh had been admitted in the Mental Hospital at Amritsar and he remained there as such up to the year 1976. It was further mentioned that Ishwar Singh was the elder brother of the appellant. Younger to him was Dalip Singh who was married to the younger sister of the respondent named Smt. Bohti. When the appellant did not agree to accept the respondent as his wife, her parents took her away from village Kaul, i.e. the appellant's village, to village Barsana. They also took along Smt. Bohti who remained at her parental place for three years from 1972 to 1975. Dalip Singh thereafter filed a petition for restitution of conjugal rights as a result of which Bohti was sent back to her matrimonial home. It was further mentioned by the appellant that he was a student of B.Sc. Agriculture. After graduation, he got employment for the first time in the year 1972. All the complaints and representations made by the respondent and her brother to the higher authorities, Ishwar Singh Ex-M.L.A. and others were termed to be entirely false and were described as pressure tactics to make the appellant bow to her wishes. He, however, did not succumb to the same.