DAMODAR Vs. URMILA

JUDGEMENT

(1.) This appeal in a matrimonial matter has been preferred by the husband from the judgment dated Nov. 20, 1977, made by the District Judge, Jhunjhunu, granting the wife a decree for restitution of conjugal rights against the husband.

(2.) The facts leading to the filing of this appeal may be shortly stated here. The parties were married according to Hindu rites at Pilani, Tehsil Chirawa, Dist. Jhunjhunu, on March 9, 1970. The wife brought a petition against the husband under Section 9 Hindu Marriage Act, 1955 (hereinafter called the 'Act') for restitution of conjugal rights on September 18, 1973. She made the allegations that the parties resided together at Sonthali for nearly 3 1/2 years after the marriage. and that the husband and his parents had been ill-treating her throughout that period. On Aug. 17, 1973, the husband forcibly took her to Pilani and left her there at her parents' house. He bluntly told her that he would not reinstate her in the matrimonial home until she brought dowry according to the wishes of his parents and satisfied them. She was carrying a pregnancy of nearly 8 months duration in August, 1973, when she was deserted by the husband. Her father went to the husband's village, namely, Sonthali on Aug. 18, 1973 and pleaded with the husband and his parents to reinstate her in the matrimonial home. They did not agree, They told him that the husband would not keep her in the matrimonial home until she brought dowry as required by them. She thus complained that the husband had withdrawn from her society without any reasonable excuse and, therefore, she was entitled to the decree as prayed

(3.) The husband contested the petition and filed a written statement in answer to it. He admitted that the parties were married according to Hindu rites at Pilani on March 9, 1970, He, however, pleaded that the Muklawa ceremony had taken place nearly 9 months after the marriage, and that the parties had started cohabitation only after the said ceremony. They resided together at Sonthali for about a week after the Muklawa ceremony. She then went back to her parents' house at Pilani and lived there for nearly 3 months with her parents. He went to Pilani and brought her back to Sonthali where they again lived together for about a week. He then went to Hoshiyarpur in the State of Punjab to work as an Astrologer. She stayed behind at Sonthali with his parents for about a month. On her insistence, his parents arranged for her return to her parents' house at Pilani. He lived in various places in Punjab till Feb. 12, 1973, when he visited his village Sonthali on the occasion of the wedding of his sister. She also visited Sonthali on that occasion. They did not, however, have sexual intercourse during that period, because, according to the husband, he was suffering from some skin irritation and itching at that time. He went back to Chandigarh after attending the wedding. Thus, according to the husband, there was no sexual intercourse between the parties at all after the husband had left Sonthali for Punjab to work as an Astrologer in the middle of 1970. He discovered a couple of months after the marriage of his sister that the wife was pregnant. He pleaded that she had admitted before the women folk that she had become pregnant from some one other than her husband. She bluntly told his parents in his absence that he is of dark complexion, and that, therefore, she is not interested in living with him. She thus left Sonthali and went back to Pilani after about a month of his sister's wedding. Her father sent her back to Sonthali around the festival of Rakshya Bandhan in 1973. She kept quarrelling with his parents at Sonthali. Her father came to Sonthali and took her from there to Pilani on Aug. 18, 1973. The husband pleaded that he was not present in Sonthali when her father took her away from there to Pilani. The husband's father went to Pilani and pleaded with the wife's parents for a settlement and for return of the ornaments and gifts given to her on the occasion of the marriage. They were not prepared for a compromise. They turned him out of their house at Pilani. The husband's father returned to Sonthali and convened a meeting of the Panchayat of the brotherhood. He told them that his daughter- in-law had committed adultery. According to the husband, the Panchayat of the brotherhood granted divorce to him according to the custom of the community. The information of this divorce was sent to the wife at Pilani and also to the Panchayat of her community. He plead ed that the divorce granted by the Panchayat is valid according to the custom and usage prevalent in the community, and that, since the marriage is no longer subsisting the wife is not entitled to restitution of conjugal rights.