IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL First Appeal No. 08 of 2008 Smt. Manpreet Kaur W/o Sri Devendra Pal Singh R/o Ward No. 6, Kasba and Thana Sitarganj District Udham Singh Nagar. ...…………. Defendant / Appellant Versus Devendra Pal Singh S/o Sri Nazar Singh R/o Ward No. 4, Main Road, Kasba and Thana Gadarpur, District Udham Singh Nagar. ...…………. Plaintiff / Respondent Mr. Siddhartha Sah, learned counsel for the appellant. Mr. Ratan Lal and Ms. Anjali Noliyal, learned counsel for respondent. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. Hon. Prafulla C. Pant, J. (Oral) This appeal, preferred under Section 19 of the Family Courts Act, 1984 read with Section 28 of the Hindu Marriage Act, 1955, is directed against the judgment and order dated 07.01.2008, passed by the Judge, Family Court, Udham Singh Nagar, in Suit No. 24 of 2006, whereby the said court has decreed the suit for restitution of conjugal rights filed by the respondent (husband). 2) Heard learned counsel for the parties and perused the lower court record. 3) Brief facts of the case are that the present respondent got married to the appellant of 8th December 2003, according to the Sikh rites. After her marriage appellant started living in her husband’s house in Gadarpur. Husband’s (present respondent) case is that he maintained his wife and looked after her well when she lived with him. But, she (appellant) was a woman of independent thoughts. She is a teacher in Government school. She did not adhere to any family traditions and limitations. However, on 11.10.2004, a son was born out of the wedlock and after 1½ months of birth of son, the appellant left her husband’s house and started living along with her son in her parental house. It is alleged that the present respondent made efforts to call back his wife but to no avail. Alleging that the appellant has withdrawn from the society of present respondent, the petition under Section 9 of the Hindu Marriage Act, 1955, was filed by him before the family court, Udham Singh Nagar. 4) The appellant contested the suit and filed her written statement in which she admitted the marriage between the parties to suit and that a son named Rabreet Singh born out of the wedlock. It is also not disputed that she is a teacher. However, rest of the contents of the suit are denied by the wife (appellant). It is pleaded in the written statement that she used to be harassed by her husband and in-laws, for bringing insufficient dowry. It is further pleaded by the appellant in her written statement filed before the trial court that her husband has kept all her jewellery and money with him. It is further alleged by the appellant that her husband and in-laws were greedy. According to the appellant, as stated by her in her written statement, on 14.03.2005, she was ousted from the house of her husband and she was beaten and abuses were hurled on her. It is further stated that on 15.03.2005, she had to go to the Government Hospital for her treatment. Admitting that once Devendra Pal Singh (present respondent) came to the house of the parents of the appellant, it is pleaded that he did not ask her to accompany him to his house. 5) On the basis of the pleadings of the parties, following issues were framed by the trial court: i) Whether, the defendant Manpreet Kaur has withdrawn from the society of her husband, without any sufficient reason? ii) Whether, the plaintiff Devendra Pal Singh has insulted his wife, and harassed her? iii) Whether, the suit for restitution of conjugal rights deserves to be decreed? 6) After recording the evidence of the parties and hearing them, the trial court decided all the issues in favour of the husband and decreed the suit for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955. Aggrieved by said judgment and order dated 07.01.2008, passed by Judge, Family Court, Udham Singh Nagar, in Suit No. 24 of 2006, this appeal is filed by the wife. 7) Learned counsel for the appellant (wife) argued that under Section 9 of the Hindu Marriage Act, 1955, party cannot be forced to live with his or her spouse in a joint family, particularly, when she (wife) is in a government service at another place. On examination of the evidence on record, we found that the trial court has totally ignored this fact that by decreeing the suit for restitution of conjugal rights, the appellant has been asked to live in the joint family of her husband at Gadarpur while she is employed in a Government service in Jhankat (Sitarganj). Learned counsel for the present respondent pointed out that the husband got the appellant (wife) transferred to Gadarpur, but she did not join her duties there. We are of the view that where wife is serving as a teacher at a different place and unable to live with her husband’s parents place, it cannot be said that she has withdrawn from the society of her husband without sufficient reason. 8) Learned counsel for the present respondent (husband) argued that the burden of proof lies on the appellant to show that she has sufficient reasons to live separately from her husband. No doubt, burden lies on the person who has withdrawn from the society of his or her spouse to show that he / she has sufficient reason to do so, as is required under Explanation to Section 9 of the Hindu Marriage Act, 1955. We agree with the position of law pointed out by learned counsel for the present respondent. But, on the perusal of the evidence on record, we found that there are sufficient reasons shown by the wife for living separately from her husband. D.W. 1 Manpreet Kaur has stated on oath that her husband and in-laws are greedy. They make demand of dowry. She has further alleged that her husband has taken money from her which she had got in the form of the fixed deposits. Said fact is admitted by P.W. 1 Devendra Pal Singh (husband). It is further alleged by her that even the clothes and gift items of the son given to him at the time of his naming ceremony were retained by the present respondent. It is further alleged by her that her husband has committed MAARPEET with the appellant, even after she left her husband’s house. In support of the averments relating to MAARPEET, copy of the first information report is filed on behalf of the appellant before the trial court. In the circumstances, we are of the view that the trial court has erred in law in holding that the wife has not shown any sufficient reason for withdrawing herself from the society of her husband. 9) For the reasons as discussed above, we are of the view that on the part of the appellant there are sufficient reasons for living separately from her husband which are established on the record and the trial court has erred in law in decreeing the suit for restitution of conjugal rights against her. Therefore, the appeal deserves to be allowed. The appeal is allowed. The judgment and order dated 07.01.2008, passed by Judge, Family Court, Udham Singh Nagar, in Suit No. 24 of 2006, is set aside. The petition for restitution of conjugal rights, filed by Devendra Pal Singh against the appellant, is hereby dismissed. No order as to costs. (Dharam Veer, J.) (Prafulla C. Pant, J.) Dt. August 07, 2008. H. Negi