IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT HON'BLE SRI JUSTICE B.PRAKASH RAO AND HON’BLE SRI JUSTICE G.BHAVANI PRASAD C.M.A.No.473 OF 2001 Date:31.12.2009 Between:- Masineedi Jayalakshmi .. Appellant/Respondent And Masineedi Ramakrishna .. Respondent/Petitioner JUDGMENT:- (per Hon’ble Sri Justice G.Bhavani Prasad) Granting of a decree for restitution of conjugal rights against the appellant in favour of the respondent-husband by the order dated 25.10.2000 in H.M.O.P.No.22 of 1998 on the file of the Senior Civil Judge’s Court, Pithapuram led the aggrieved wife to file the present appeal. The respondent-husband approached the trial Court with a request for restitution of conjugal rights alleging that he was married to the appellant on 14.04.1984 and had a daughter and son through the conjugal relationship, who were aged 12 and 10 years respectively, by the time of the petition. The husband alleged that the wife left the matrimonial home at Mallam on 14.01.1995 on Bhogi festival day to her parents’ house at Durgada and did not return since then. He alleged the children to have been admitted into a school at Durgada and the wife and children to have not returned and refused to return inspite of his efforts, mediations by elders and a legal notice dated 16.11.1998. The appellant contested the claim contending that four years prior to her counter, she was driven out of the matrimonial home on Sankranthi day by the husband with the aid of his family members due to which, she was compelled to admit her children in a school at Durgada. She claimed that she was never allowed by the husband to join his company at Mallam as the husband developed illicit intimacy with Paparatnam of Mallam. The husband was also alleged to be addicted to drinking and was further alleged to be beating the wife in an intoxicated condition. The wife also alleged that the husband was demanding for more dowry from the wife and the husband did not provide the minimum necessities, when on the advice of the Lok Adalat, they lived together for sometime at Chebrolu during the pendency of this very petition. The wife claimed to have been compelled to give a report to Gollaprolu police when the husband attempted to kill her thrice and therefore, she desired the petition to be dismissed. During the enquiry before the trial Court, P.Ws.1 to 11 and R.Ws.1 to 4 were examined and Exs.A-1 to A-3 were marked. The trial Court rendered the impugned order referring to the oral and documentary evidence extensively and noting the admitted separation between the couple since the Bhogi festival day in 1995. The trial Court considered that there were divergent versions about the alleged mediations at the instance of the husband, but the claim of the husband that he personally went to bring the wife back from Durgada could not be believed. The trial Court also found that the allegation by the husband in the evidence about the attempts to take him as an illatom son-in-law was also a subsequent introduction without any pleading. The trial Court further observed that though there were circumstances to suspect the husband, the wife failed to prove the alleged illicit intimacy of the husband with anyone, which was admittedly not revealed even to her parents for about ten years. The trial Court also opined that the evidence of P.Ws.2 to 4 and 7 was interested and not independent while P.W.11, the so called independent witness, was not a natural witness. The evidence of R.W.2-father of the wife and R.W.3-daughter of the couple was considered useful to establish that the husband did not provide any maintenance to the wife and children after they left Mallam, which was admitted by the husband also. The trial Court felt that no independent witness was examined to prove the beating of the wife by the husband or the husband coming to the house in a drunken state. On the whole, the trial Court felt that any cruelty by the husband was not established due to which, the wife cannot withdraw from the company of the husband and consequently, decreed the petition for restitution of conjugal rights. The wife challenged the impugned order in this appeal contending that the abnormal delay in filing the petition for restitution itself should have resulted in dismissal of the petition and also as the petitioner, with a malafide intention, was avoiding maintenance of the wife and children. The wife alleged that there was no reason to not act upon the evidence of R.Ws.1 to 3 as the members of the family are the most natural witnesses in such matrimonial disputes. The illicit intimacy between P.W.1 and P.W.4 leading to the wife being treated cruelly could have been considered to reject the request for restitution of conjugal rights and it should have been noted that a rural woman would not have made such an allegation against her co-daughter-in-law unless there was an element of truth. As the wife was an eye witness to the sexual intimacy of the husband with P.W.4 and as the grown up daughter-R.W.3 supported her version, the petition by the husband should have been dismissed. Though the respondent-husband was served with notice of this appeal, none entered appearance on his behalf and Sri T.Durga Prasada Rao, learned counsel for the appellant strenuously contended with reference to the probabilities arising out of the evidence that there was no justification for the grant of a decree for restitution of conjugal rights. The point for consideration is: “Whether the respondent-husband is entitled to have an order for restitution of conjugal rights against the wife-appellant?” The respondent-husband did not file any cross objections or cross appeal against the conclusions of the trial Court that were adverse to him in the order under appeal. The trial Court, noting the admitted separation and the conflicting claims about the reasons that led to separation, positively found that the husband never went to Durgada personally either alone or along with mediators to bring back the wife, which circumstance may not be in consonance with the claim that he was always anxious to be in the company of his wife and children. The alleged mediations set up by the husband were considered not proved and the trial Court discussed in detail the discrepancies and the absence of details in the evidence of the witnesses for the husband, to come to such a conclusion, which need not be replicated herein. It is seen from the evidence that the husband tried to further aggravate the allegations by claiming that he was demanded to become illatom son-in-law which has no basis in the pleadings. The trial Court also found that P.W.8 was a mere chance witness while P.W.11 was not a natural witness. The claim that a rustic wife, who lived faithfully with her husband for more than a decade and blessed with two children in the meanwhile, would not have left the matrimonial home without any strong reason is in tune with the ordinary natural course of human events and though the wife failed to prove that the husband demanded for any extra dowry, she could not have adduced any other evidence about the alleged illicit intimacy between P.W.1 and P.W.4 which would have been an incamera affair inside the house which could have been witnessed only by the inmates of the house. Though R.W.1 was interested in her own pleas, her assertion that she witnessed the illicit intimacy between her husband and P.W.4 could not have been rejected outright on the ground of want of corroboration, as no such corroboration could possibly have been secured under the circumstances. Even assuming that such illicit intimacy could not have been believed solely on the evidence of R.W.1, there was no strong reason as to why the evidence of R.W.2-the father of the wife and the evidence of R.W.3-the daughter of the couple should be rejected out right, as done by the trial Court. As the members of the family, they would be knowing the internal happenings and no father would have resorted to speak falsehood to destroy the marital life of his daughter and no daughter would have preferred the mother as against the father, both the parents being equal to her, unless there is some truth in the grievances of the wife. The trial Court itself having found the evidence of the other witnesses for the husband to be tainted with interestedness and the evidence of the independent witnesses to be not inspiring confidence, had no convincing reasons to reject the evidence of the wife supported by her daughter and father, more so after observing that the evidence of R.Ws.2 and 3 was useful to establish that the husband did not provide any maintenance to the wife and children after they left Mallam. The very neglect to maintain the wife and children may not fit in with his claims of anxiety to live together. While the separation was in 1995, the husband was absolutely silent till the legal notice in November, 1998 and the petition for restitution before the trial Court much later, which also cannot be considered reflective of his wish to restore the matrimonial home. The overall consideration of the evidence for both parties, thus indicates the reasons for separation to have not been established to be those alleged by the husband and the version of the wife to be more probable and natural. If the version of the wife is more acceptable, then she cannot be stated to be having no justification to reside separately from her husband, even in the absence of proof of any illicit intimacy and demand for additional dowry, when otherwise he was probablised to be treating the wife with cruelty as stated by R.Ws.1 to 3 corroborated by the independent witness, R.W.4. If she has such justification, no restitution of conjugal rights can be ordered against her and hence, the impugned order has to be revised. Therefore, the order dated 25.10.2000 in H.M.O.P.No.22 of 1998 on the file of the Senior Civil Judge’s Court, Pithapuram is set aside and H.M.O.P.No.22 of 1998 is dismissed without costs and the appeal is allowed accordingly without costs. ____​___________ B.PRAKASH RAO, J ____​______________ G.BHAVANI PRASAD, J 31st December, 2009 AMD/SKM