SHRAWAN KUMAR Vs. USHA DEVI

JUDGEMENT

(1.) The present First Appeal has been filed on behalf of the Appellant challenging the Judgment dtd. 21/9/2022 and Decree dtd. 29/9/2022, passed in Original Suit No. 286 of 2020 by Shri Anil Kumar Pandey, Additional Principal Judge-II, Additional Family Court, Ranchi, by which the Original Suit filed on behalf of the Appellant under Sec. 9 of the Hindu Marriage Act has been dismissed.

(2.) The case of the Appellant, in brief, is that the Appellant is aged about 58 years and the marriage of Appellant with the respondent was solemnized on 19/2/1984 according to Hindu rites and customs and they are husband and wife. Out of the said wedlock two children, namely Prabhat Kumar and Pradeep Kumar were born. Respondent is a Government Teacher at Sri Doranda Kanya Pathsala, Ranchi and in the year 2022, she used to get Rs.62,354.00. The elder son teaches in coaching center and younger son works in America. Both have good income per month. Appellant used to sell copy, pencil on footpath and the Respondent used to quarrel with the Appellant and used to tell him to stop such work as she is ready to bear his expenses. The Appellant did not accept the proposal of the respondent. So, the respondent and her elder son ousted him from the house in 2012. The Appellant is living separately from the respondent and his children since 2012. Due to his increasing age he has poor vision due to which he is not getting any job. He anyhow is able to arrange his food, clothes etc. with the help of neighbours and others. The respondent has been living in Blue Diamond Apartment, Hatia along with her son and leading a luxurious life while the Appellant is unable to earn even a single penny and is dependent on others. So, the Respondent may be directed for restitution of conjugal right u/s 9 of the Hindu Marriage Act and a prayer has also been made for a direction to give him Rs.25,000.00 per month for contesting the case.

(3.) As per show-cause filed by the Respondent in the Original Suit No. 286 of 2020, the marriage between Appellant and respondent on 19/2/1984 has been admitted and stated that the Appellant's age, is false since, as per his Matriculation Certificate, he is about 56 years old as his date of birth is 5/10/1964. It has been stated that since the day of marriage to till date, the Appellant has been exerting cruelty, torture, domestic violence and assault etc. up on the respondent. A criminal case was filed by Respondent against the Appellant u/s 498(A) I.P.C and in that case judgment was passed on 19/12/2016 in G.R Case No-3355/2012. The Appellant has been awarded sentence of two years imprisonment and to pay the fine of Rs.1,000.00. The Respondent had also filed a Complaint Case 1873/2017 against the Appellant for her defamation u/s 499/500 I.P.C for harming her reputation by a false and deliberate defamatory statement. It has also been pointed out that the Appellant had also filed Maintenance Case 208/2014 u/s 125 Cr.P.C which had been rejected on 27/5/2015 and Matrimonial Case 334/2015 filed under Sec. 10, 13(i-a), 13 (i-b), 24 and 25 of the Hindu Marriage Act, which was dismissed by the Additional Principal Judge, Family Court, Ranchi on 20/4/2018. The Respondent denied to pay maintenance allowance and to reside with the Appellant. It has been also submitted by the respondent that the statement of Appellant is false to the effect that his elder son is running Coaching Centre and the real fact is that the elder son of respondent is doing job in Sankalp Semi Conductor Company in Hubli. Only respondent and the Appellant were residing in the house. The Appellant used to quarrel and abuse the respondent that her father did not give dowry and so it is obligatory on her part to give all her earnings to him and he used to beat her on her objection to his allegation. On 18/5/2012, when the respondent was going to fetch milk, he ordered her to bring pocket of chocolate for his shop. When she told him that she had no money in her possession, then all of sudden, the Appellant attacked her and thrashed her on the floor and tried to kill her by strangulating her with fastening her Dupatta on her neck, but any how she became successful to loosen the grip of the Appellant and fled outside the house. She reported this incident to Mahila P.S, Ranchi and left the Appellant's house and went to her parent's rented residence at Hatia, Ranchi. After this incidence, she never came back to Appellant's house due to fear of her life. The Appellant has not taken any plea that during long period of about 12 years he admitted to fetch his wife in his society. The Appellant, therefore, must fail on this ground alone as it means that Appellant does not want restitution of conjugal rights with his wife, rather he is only interested in getting money from her in shelter of Sec. -24 of Hindu Marriage Act. It is also stated that the Appellant was not driven out from his house, rather it is the respondent, who left his house in fear of her life because the Appellant is very cruel and obstinate having no regard for conjugal value with his wife. The Appellant in his daily domestic dealing with wife cried foul, using filthy languages connecting female body organs, indecent exposure which is intolerable for any self-respecting wife and fear of life compelled her to leave the house of petitioner forever. It is one of the excuse for the Respondent to withdraw from society of the Appellant. It has also been stated that in his petition for maintenance u/s 125 Cr.P.C in O.M Case No-208/2014, Appellant had stated, inter-alia, that the respondent was in extra-marital relationship with others as mentioned in Para-3, 7 & 8 and which was Annexure-4 to the show-cause filed in Original Suit No. 286 of 2020. This statement in open public view cannot be dismissed lightly by any self-respecting wife. This gives rise to reasonable excuse to the respondent to withdraw from the society of the Appellant. The Appellant, in his M.T.S Case No-334/2015 filed against the respondent, has clearly stated that he has been living separately for last seven years. He has also made allegation of extra-marital affair of his wife and on that ground he has prayed for judicial separation and divorce. Though, that case was dismissed and as per his admission in that case, now the Appellant and respondent has been living separately for last twelve years. He has also filed a complaint before the S.S.P, Ranchi alleging therein that his wife and Dr. Rajendra Prasad Choudhary are in an extra-marital relationship. This also gives rise to reasonable excuse for the respondent-wife to withdraw from the society of the Appellant. On 21/6/2016, the Appellant made publication about the Respondent in Hindi daily newspaper stating therein that Respondent has extra- marital relationship with others and his sons has mortgaged his land. Both these allegations are totally false and mischievous, defamatory and with an intention for tarnishing the image of the respondent and her son, which is also a reasonable excuses to withdraw from the society of the Appellant. All these allegations are painful and mental torture to the respondent for her whole life which cannot be pardoned and is considered eligible for decree of dismissal of the petition of the Appellant herein for restitution of conjugal rights in limine. It is stated in the show-cause that the Appellant himself has disclosed his income as Rs.90,000.00 per year i.e. approximately Rs.8,000.00 per month which is more than sufficient for comfortable living of the Appellant. This certificate has also been issued by the Circle Officer. Apart from this, the Appellant has got two plots of land in Doranda Bazar (Main Road) Vide Deed No. - 8261/1990 and Deed No.- 5797/ 1997. A Pucca building comprising three rooms upon that plot and other empty plot of land the Appellant cultivate vegetables and stocks some saleable building material. The Husband-Appellant is bound to maintain his wife and he cannot make himself wholly dependent upon the income of his wife through the device of Sec. -24 of the Act. He is also not eligible for any maintenance u/s 24 of Hindu Marriage Act. Hence, his petition for restitution of conjugal rights u/s 9 is liable to be dismissed.