IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL First Appeal No. 64 of 2008 Smt. Sapna W/o Shri Neetu D/o late Shri Raj Kumar, R/o Mohalla-Khurja Mill, Ambala Road, Saharanpur, P.O. and Tehsil & District Saharanpur (U.P.) ...…………. Appellant Versus Neetu S/o Shri Bal Chand R/o Mohalla-Simli, Laksar, P.O. & Pargana & Tehsil Laksar, District Haridwar. ...…………. Respondent Mr. Pramod Tiwari, Advocate holding brief of Mr. Rajendra Singh, Advocate for the appellant. Mr. Ajay Veer Pundir, Advocate for the respondent. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble B.S. Verma, J. Hon. Prafulla C. Pant, J. (Oral) This appeal, preferred under Section 19 of the Family Courts Act, 1984, is directed against the judgment and order dated 30th of September 2008, passed by the Judge, Family Court, Haridwar, in Suit No. 291 of 2008, whereby the said court has decreed the suit for restitution of conjugal rights against the present appellant. 2 2) Heard learned counsel for the parties and perused the lower court record. 3) Brief facts of the case, giving rise to this appeal, are that the appellant got married to respondent on 26.11.2002, at Saharanpur. After marriage the appellant started living with her husband (respondent) in her matrimonial house at Laksar. In October 2003, appellant left for her parental house in Saharanpur and did not return back. The respondent filed a petition under Section 9 of the Hindu Marriage Act against the wife (present appellant) seeking decree of restitution of conjugal rights alleging that the appellant (wife) has withdrawn herself from the society of the present respondent (husband) without any sufficient cause. 4) The wife (present appellant) contested the petition under Section 9 of the Hindu Marriage Act, 1955, and filed her written statement before the trial court. She admitted having married to the respondent Neetu. It is also admitted that she left her husband’s house in October 2003. However, rest of the contents of the petition are denied by the wife (present appellant) in her written statement. It is pleaded by her that the present respondent and his parents demanded dowry from the parents of the appellant, and harassed her for non- fulfillment of demand of dowry. It is also alleged by the present appellant in her written statement that she was treated with cruelty by her husband and in laws. It 3 is also pleaded that she lodged a first information report with police station Kutub Sher, Saharanpur, relating to harassment due to non-fulfillment of demand of dowry in which charge sheet has already been filed against her husband and in-laws. 5) On the basis of the pleadings of the parties, following issues were framed by the trial court: i) Whether, the respondent (present appellant) has withdrawn from the society of the petitioner (present respondent) without any reason? ii) Whether, the petitioner (present respondent) is entitled to the relief, claimed? 6) After recording the evidence and hearing the parties, the trial court decreed the suit for restitution of conjugal rights. Hence, this appeal by the wife. 7) Admittedly, appellant Sapna got married to respondent Neetu on 26.11.2002, at Saharanpur, whereafter she lived with her husband in Laksar. It is also not disputed that in October 2003, she left for her parental house. The question before this Court is whether, she (the appellant) had withdrawn from the society of the husband (present respondent) without any sufficient reason so as to entitle him to decree of restitution of conjugal rights, or not? 4 8) From the evidence on record it is proved by the appellant that she lodged first information report against her husband and in-laws relating to offences punishable under Section 498-A, 406, 323, 504, 506 of I.P.C. and one punishable under Section 3/4 of the Dowry Prohibition Act. It is also proved on the record that charge sheet has been filed after investigation against the accused present respondent and three others namely, Neetu (husband); Bal Chand (father-in-law); Guddi (mother-in-law); Kuldeep (brother-in-law) and Sandeep (brother-in-law). Copy of the charge sheet is filed in the record of the trial court. P.W. 1 Neetu (husband) in his cross-examination admits that the criminal case relating to demand of dowry is pending against him. However, he has stated that said case is false. We are at loss as to how the trial court has decreed the suit for restitution of conjugal rights in the present circumstances of the case. If the appellant is made to live with the respondent when criminal case is pending against him filed by his wife, it cannot be expected that she would be allowed to live peacefully in her matrimonial house. Though, the demand of dowry has been denied by P.W. 1 Neetu and P.W. 2 Bal Chand, but D.W. 1 Sapna in her statement has told the court that not only demand of Rs. one lac was made by her husband and in-laws, but she was subjected to cruelty to the extent that she was tied in a cot and left helpless. D.W. 2 Smt. Raj Rani, mother of the appellant, has corroborated the statement of his daughter 5 that the husband (present respondent) and her parents used to demand dowry. She has further stated that on 07.10.2003, she received a phone call that Sapna has been beaten. On 8th of October she left Saharanpur to see her and found that Sapna was tied in a cot, who told her that for non-fulfillment of demand of dowry she has been subjected to cruelty. With this kind of evidence on record, the trial court has committed grave error of law in decreeing the suit for restitution of conjugal rights filed by the husband. We are of the view that there are sufficient reasons for the wife (present appellant) to withdraw from the society of her husband, which disentitle him decree of restitution of conjugal rights. 9) For the reasons as discussed above, without expressing any opinion as to the merits of criminal case pending against the present respondent and his relatives, we are of the view that this appeal deserved to be allowed. Accordingly, the appeal is allowed. The impugned judgment and decree dated 30th of September 2008, passed by the Judge, Family Court, Haridwar, in Suit No. 291 of 2003, is hereby set aside. The suit for restitution of conjugal rights (No. 291 of 2003) filed by the present respondent is dismissed. However, no order as to costs. (B.S. Verma, J.) (Prafulla C. Pant, J.) Dt. July 15, 2009. H. Negi