:::!:T...' HIGH COURT OF CHHATTISGARH AT BILASPUR Division Bench: Hon'ble Shri Dhirendra Mishra, & Hon'ble Shri Rangnath Chandrakar, JJ, r'\ First "Appeal (M) No. 55 of 2009 Appellant Smt. Savitri Bai Vs. Respondent Narendra Sahu JUDGMENT FOR CONSIDERATION Sd/- R.N. Chandrakar Judge Hon'ble Shri Dhirendra Mishra.J. Sd/- Dhirendra Mishra Judge Postforpronouncementofjudgmenton ^3-04-2010 Sd/- Dhirendra Mishra Judge \ r HIGH COURT OF CHHARTTISGARH AT BILASPUR CORAWI: Hon'ble Shri Dhirendra Mishra & Hon'ble Shri Rananath Chandrakar. JJ ADpellanV Non-applicant Before the Familv Court. First Appeal (Ml No. 55 of 2009 Smt. Savitri Bai, W/o. Narendra Sahu, D/o. Haldhar Sahu, aged about 21 years, occupation Domestic Work, R/o. at present Dewanpali, P.S., Saraipali, Distt. Mahasamund (CG). Versus Respondent Applicant before the Familv Court Narendra Sahu, s/o. Shri Deendayal Sahu, aged about 22 years, occupation - Training in Tailoring R/o. Village - Dansara, P.S. Sarangarh, Distt. Raigarh (CG). (Appeal under Section 19 (1) ofthe Family CourtAct, 1984), Present: Shri Manoj Jaiswal, counsel for the appellant. Shri Abhishek Saraf, counsel for the respondent. JUDGMENT (Delivered on 5.-2, dayofApril, 2010) Per Rananath Chandrakar, J. This appeal under Section 19 (1) of the Family Courts Act, 1 984 is directed against the judgment and decree dated 30-4-2009 passed by the learned Judge, Family Court, Raigarh, in Civil Suit No. 29-A/2008, whereby the learned Judge, Family Court allowed the application under Section 9 of the Hindu MarriageAct, 1955 (for short, "the Act") for restitution of conjugal rights filed by the respondent/husband. "/'-' w ^saSc^ ^ -y 2) Brief facts necessary for disposal of this appeal are that the parties are Hindu legally wedded spouses and their marriage was solemnized on 11-3-2007 according to Hindu rites and rituals and they were residing together and discharging their marital obligations for some time. Thereafter, the appellant started pressurizing the respondent/husband to live separately from in-laws and they lived together separately in a different room under the same roof. In the meanwhile, the appellant/wife became pregnant. In the night of 27-4- 2008 she leaving the company of her husband/respondent went to her maternal house where she gave birth to a child and she did not return from there despite the attempts made by the respondent/husband. Therefore, the respondenVhusband moved an application under Section 9 of the Act for restitution of conjugal rights before the Family Court, Raigarh. The appellant/wife contested the case and denied almost all the allegations made by the respondent/husband and pleaded that she was subjected to cruelty for demand of dowry, therefore, she had to leave the company of the respondent/husband on 27-4-2008. A written report thereofwas lodged in Police Station, Saraipali on 2-5-2008 where first information report was registered under Section 498-A read with Section 34 of the IPC. She denied to live with the respondent/husband and expressed that her lifewould be in danger if she lives with her husband/respondent. 4) Learned counsel appearing for the appellant vehemently argues that the appellant/wife was misbehaved and subjected to cruelty by her husband and in-laws, therefore, she had to live at maternal house. Jhus, there was sufficient cause for the appellant to live separately from .,'.'rsi!-'At^ /"^t% ''%.. the respondent/husband. The learned Family Court failed to appreciate the evidence adduced by the parties in its proper perspective and reached to a wrong conclusion that the allegations of cruelty made by the respondent were frivolous and fabricated and the respondent voluntarily withdrew herself from the society of the appellant without any sufficient reason. 5) Per contra, learned counsel appearing for the respondent argued in support of the impugned judgment. He submitted that the appellant/wife is living separately from her husband/respondent without any just and reasonable cause and the Family Court has rightly allowed the application filed by respondent/husband for restitution of conjugal rights. He specifically submitted that the respondent never treated the appellant with cruelty, but the appellant/wife herself deserted him without any rhyme or reason. 6) On the basis of the averments of the parties, learned Family Court framed the issues and after affording opportunity of hearing to the parties, allowed the petition for restitution of conjugal rights filed by the respondent. 7) We have heard Shri Manoj Jaiswal, learned counsel for the appellant and Shri Abhishek Saraf, learned counsel for.the respondent, perused the impugned judgment & decree and record of the Family Court. 8) In o'rder to appreciate the arguments advanced on behalf of the parties, we have examined the evidence available on record. On perusal of the evidence adduced by the parties we find that the .dy!es3P%.. /^'^k^, ° '^SS5St» 5S 1 '''i®aai| i i. 19 / '^, '^^ S^J ^ ^"~ ^y" respondenVhusband has alleged in his application as well as in deposition before the Family Court that he is the only sonof his parents having one sister. Just after the marriage, the appellanVwife and her father started pressurizing him to live separately from in-laws. In this connection, the father of the appellanVwife took away his motor-cycle also which was given as gift at the time of marriage. He tried to convince the appellanVwife but she did not yield, therefore, he along with the appellant/wife started living in a separate room at the back side of thesame roof upto 1 1/1 years, During this period also the fatherof the appellant/wife used to come in a drunken condition and cause disturbance in their relationship. On 27-4-2008 the appellanVwife went to her maternal house without any sufficient reason and since then she did not return. He further alleged that the appellanVwife was carrying seven months pregnancy when she left the company of the respondent/husband. The appellanVwife gave birth to a male child in her maternal house. He made severat attempts to bring back the appellanVwife to live with him but could not succeed due to interference by the fatherof the appellanVwife. The father of the appellant neither wanted to send back the appellant/wife to the respondent/husband nor allowed him to talk with his wife/appellant. He is still ready and willing to lead conjugallife with his wife and child. In his cross examination also the respondenVhusband stated that the appellant was ready to live with him but her father did not agree. The other witnesses have also corroborated the contention ofthe respondenVhusband and stated that the dispute between the appellant and the respondent was only due to interfprence by th'e father of the appellant; otherwise, the F^ /^~ ^'?^?T?"55^. ^g •v-f. respondent/husband is still ready to lead happy married life with the appellant/wife. 9) On the contrary, the appellanVwife deposed that her relation with the respondent/husband was cordial for one year and thereafter he started treating her with the cruelty for demand of dowry. He used to demand motor-pycle, cash and golden ornaments. On 27-4-2008 the respondent/husband and his mother committed "marpit" with her and at that time she was carrying six months pregnancy. She was rescued only on the assurance of fulfilling their demand and ousted from the house in the night at 4.00 a.m. Thereafter, she came to her maternal house and since then the respondent/husband never came to bring her back. She further stated that she did not want to live with the respondenVhusband because she was subjected to eruelty for demand of dowry. Her life would be in danger if she goes to live with the respondent/husband. The respondenVhusband wanted to take her back with a view to get the reportcompromised lodged against him regarding cruelty for demand of dowry. In her cross examination she denied the suggestion that any motor-cycle was given to the respondent/husband at the. time of marriage which was taken away by her father and the respondent/husband was in possession of the documents thereof. 10) On re-appraisal of theevidence, it is found that in para 5 of her written submission as well as in para 8 of her cross examination the appellant/wife specifically denied that the respondent/husband was given any' motor-cycle as gift at the time of marriage, but the respondent/husband filed the documents Ex. 'P/1 to P/3 which go to show that one motor cycle TVS Star city was purchased on 7-3-2007 w a (prior to the marriage i.e., 11-3-2007) by Haldhar Sahu, father of the appellant/wife as the delivery challan of Sweety Automobiles bears his signature as purchaser. Thus, we find it clear that one motor-cycle was purchased by the father of the appellant/wife prior to the marriage and the documents thereof were in possession of the respondenVhusband which only suggest that the respondent/husband was given the same as gift at the time of marriage and the question of subjecting the appellant/wife to cruelty for demand of dowry like motor cycle and other items, does not arise. Furthermore, it also falsifies the evidence of the appellanVwife regarding any demand of dowry made or any cruelty committed by the respondent/husband as alleged in the written statement and the documents Ex. D/1 and D/2. The learned Family Court in para 18 of the impugned judgment rightly held that the evidence adduced by the respondent/husband is more probable than the evidence adduced by the appellanVwife. Thus, we are not in hesitation in holding that the appellanVwife voluntarily deserted the respondenVhusband without sufficient reason. She is not even interested in leadinghappy married life with the respondentas her witnesses namely Ramprasad and Nand Kumar have stated in their examination-in-chief that the appellant/wife herself did not want to go to her matrimonial house though her father wanted to send her. It is also pertinent to mention here that a good deal of endeavour for reconciliation was made by the learned Family Court but all in vain. 11) On close scrutiny of the evidence, we are of the view that the Family Court has not committed any illegality or irregularity in allowing ? the petitjon for restitution of conjugal rights. aju 12) Consequently, the appeal being devoid of merits is liable to be and is accordingly dismissed. Parties to bear their own costs. 13) Decree be drawn up accordingly. Sd/- Dhirendra Mishra Judge Sd/- R.N. Chandrakar Judge