JEEWAN PRAKASH Vs. SMT. HEMLATA KUMAWAT

JUDGEMENT

(1.) THE appellant -applicant husband of the respondentnon - applicant is aggrieved against the judgment and decree of the trial Court dt. 16.02.2005 passed by the learned Judge, Family Court, Udaipur in Civil Misc. Case No. 80/2002 filed under Section 9 of the Hindu Marriage Act. The trial Court dismissed the appellant 's petition under Section 9 of the Hindu Marriage Act vide impugned order. Hence this appeal.

(2.) BRIEF facts of the case are that the marriage of the appellant and respondent took place on 06.07.1988. They have two daughters who were of the age of 12 years and 6 years when the present petition under Section 9 of of the Hindu Marriage Act was filed on 15.02.2002. The appellant and respondent were living in the city of Udaipur but according to the appellant, the respondent left the appellant on 03.07.1992 and went to the town Chittorgarh where her parents were living. The respondent also took their daughter Miss Maya along with her. Inspite of several efforts, the respondent did not come to appellant 's house. Then the respondent submitted divorce petition under Section 13 of the Hindu Marriage Act in the Court of Additional District Judge No. 1, Chittorgarh on 13.04.1993. The appellant submitted petition under Section 9 of the Hindu Marriage Act in the Court of Additional District Judge, Chittorgarh which was case No. 90/94. The respondent submitted petition under Section 125, Cr.P.C. also. Ultimately, there was settlement between the parties on 22.07.1995 and the respondent started living with the appellant. In view of the settlement, the appellant withdrew his petition under Section 9 of the Hindu Marriage Act (No. 90/94) and respondent withdrawn her petition under Section 13 of the Hindu Marriage Act. However, according to the appellant, the respondent used to say that she do not want to live with the appellant and she used to tell the appellant that the appellant is old person and she does not like him. Thereafter, the respondent lodged a criminal case under Section 498A, IPC in the police station. In the said case, all the accused including the appellant were acquitted. Again there was settlement between the appellant and the respondent and the cases from the Court at Chittorgarh withdrawn. After settlement of all disputes, the respondent went to meet with her mother and took her daughter Miss Maya with her inspite of protest by the appellant. Thereafter, she did not turn up and in his parents ' house, she gave birth to second daughter on 16.06.1996. Thereafter, also a petition under Section 125, Cr.P.C. was filed wherein the Court awarded the maintenance of Rs. 500/ - per month to the respondent and Rs. 300/ - per month for each of the daughter against the appellant. The appellant thereafter gave a notice to the respondent and when she did not come back, the appellant gave another notice through his advocate on 23.03.2002 and thereafter filed this petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights.

(3.) THE issue was framed and the appellant gave his statement as AW -1 and produced witnesses AW -2 Moti Lal, AW -3 Radhy Shyam and AW -4 Mohan Bai. In rebuttal, respondent gave her statement as NAW -1 and produced her witness NAW -2 Durgak only. The trial Court, after considering evidence of the parties, held that the appellant and appellant 's father levelled absolutely serious false allegation of bad character of the respondent and there is allegation of respondent that the appellant and his family members tried to burn her and the Court found that there are scars of burn on the face of the respondent and there is oral evidence of the respondent that she was not only cruelly treated but there is a danger to her life in living with the appellant. The trial Court also held that there is no explanation why the respondent, who even after dispute, started living with the appellant, left the appellant. In view of the above, the trial Court held that the appellant failed to prove that the respondent is not discharging matrimonial obligations without any just cause.