IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. FAO (HMA) 303 of 2008. Judgment Reserved on 30.11.2009. Date of decision December 8, 2009. Shri Kuldeep Kumar Dogra …Appellant. Versus Smt. Monika Sharma …Respondent. Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 Yes. For the appellant Mr. Bhupender Gupta, Sr. Advocate, with Mr. Janesh Gupta, Advocate. For the respondent Mr. N.K.Thakur, Advocate. Dev Darshan Sud, J. This appeal has been preferred by the husband against the judgment and decree of the learned Additional District Judge, Fast Track Court, Hamirpur, dismissing his petition under Section 9 of the Hindu Marriage Act, 1955 (hereafter referred to as ‘the Act’). It is pleaded by the appellant that he and the respondent had been married according to Hindu rites and ceremonies on 26.4.1993 in Hamirpur. They resided as husband and wife 1 Whether Reporters of Local Papers are allowed to see the judgment? Yes. - 2 - after the solemnization of marriage and had two male children Shubham Dogra and Praful Dogra, aged 9 and 7 years respectively on the date when the petition was instituted. The family initially lived in Hamirpur till they shifted to village Khas Gran. On 10.1.2004, the respondent wife left the matrimonial house without any reasonable excuse and started residing separately from the appellant. It was pleaded that she has willfully refused to cohabit with the appellant, perform her duties as a wife, the appellant was ready and willing to keep her but she has refused on more than one occasion to join his company. The petition was resisted by the respondent on a number of grounds, primarily that the appellant had deliberately and intentionally created a situation which was not congenial and it was impossible for her to live with him. He had forced her to part company with him and to take their two minor children with her. She also pleaded that she was subjected to extreme mental harassment and physical violence. She was revered by the general public as being a pious lady and was known by the name “Sandhoori Mata”, i.e. one who gives vermilion. She was devoted to performing Puja / prayers for the Divine Mother and had a large following where - 3 - she was providing relief to her followers from illness and mental tension etc. by merely giving Prasad and Sindhoor etc. of the Divine Mother. The appellant started resenting her popularity and forcibly took away the offerings which were made to the deity. He got incensed and even burnt the wooden bridge connecting the road to the temple where the respondent used to perform Puja / rituals. He had the electricity and telephone connections of the room where she was residing, disconnected. Allegations of illicit relationship between the appellant and his Bhabi were also made by the respondent. The learned Judge, on the settled issues, as to whether the respondent had withdrawn from the society of the appellant for a reasonable cause, decided in favour of the respondent. The husband is now in appeal. I have heard the learned counsel for the parties and have gone through the record. Learned Senior Counsel appearing for the appellant urges that the learned trial Court was wrong in holding that the appellant had in any manner forced the respondent to leave the matrimonial home or had given her any cause or excuse to withdraw from his society. In - 4 - particular, he refers to Ex. PW-2/A and Mark X. The first document is purported to be the statement voluntarily made by the respondent before the Gram Panchayat and in front of a number of persons that she is voluntarily withdrawing from the society of the appellant and taking away all her belongings etc. To prove this document, the appellant has appeared as PW-1 stating that such a statement was in fact recorded by the Pradhan of the Gram Panchayat. PW-2 Gurdev was the Pradhan of the Panchayat, who had brought the summoned record. He stated in his evidence that he had brought the summoned record and has certified the copy Ex.PW-2/A. I must note at this juncture that the document is a photo copy which has been certified by the Pradhan. The basis on which this was done is not clear. In the record brought by him, there is no copy or original of this statement and it is not proved as to on what basis he certified it. It would have been altogether a different issue if this writing had been maintained on the record of the Panchayat under some statutory rules etc. or otherwise as a general practice. There is nothing on record to show as to where the original writing had been kept. He admits in his cross examination that he has no record to show as to how and on - 5 - what basis Ex.PW-1/A is purported to have been issued by the Panchayat. The respondent when she appeared as RW-1 has denied this writing. In these circumstances, I hold that it is not possible to accept this document as being authentic establishing the case of the appellant, more especially when he does not produce the original writing which may have been in his custody or which could have been summoned from the respondent if she was possessed of it. Adverting to Mark X, again it is a carbon copy of some writing executed between the parties and cannot be read in evidence. One salient fact requires to be noted about this case and that is, that the son of the parties to this case Shubham Sharma appeared as RW-6. He was 12 years when his evidence was recorded on 15.6.2006. The learned Court had put questions to him to test his capacity to testify and the Court records that he is fit in all respects to be a witness. His evidence is clear. He states that his father used to quarrel with his mother and wanted to appropriate the entire offerings which were given to the Deity. He says that his mother wanted the offerings to be applied for the purposes of worship and the temple but this was not acceptable to the appellant and he went to - 6 - the extent of getting the electricity and telephone connections disconnected. He used to subject the respondent to verbal and physical abuse and also burnt down the wooden bridge which provided access to the temple. His testimony cannot be ignored and the so called discrepancies pointed out cannot be taken to have destroyed the veracity of whatever he states in examination in chief. Admittedly both the children are residing with the mother. This fact would itself show the attachment of the children with the mother and not with the father who now seeks to set up a case that he is willing to accept the respondent out of love and affection and keep her as his wife. Section 9 of the Act provides: “9. Restitution of conjugal rights: When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district Court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly. Explanation: Where a question arises whether there has been reasonable - 7 - excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.” The evidence on record does not establish that the respondent has withdrawn from the society of the appellant without reasonable or justifiable excuse. Even if the other evidence of the appellant on record is accepted, there is nothing to establish that the respondent has not been treated with cruelty. The evidence of the child has been considered because this would be the most natural testimony. Merely stating that he has affinity for the mother is no ground for disbelieving his evidence. In Sadhu Singh Balwant Singh v. Smt. Jagdish Kaur Sadhu Singh, AIR 1969 Punjab & Haryana, 139, it was held: “….The word ‘excuse’ appears to have been advisedly used. It is something less than ‘justification’, and something more than a mere whim, fad or brain-wave of the respondent. It is a fact which has to be determined with reference to the respondent’s state of mind in the - 8 - particular circumstances of each case…” In Smt. Shanti Devi v. Balbir Singh and another, AIR 1971 Delhi 294, considering the import of the term ‘reasonable excuse’ the Division Bench holds: “…It will have to be seen firstly. whether the husband or wife, as the case may be, has withdrawn from the society of the other without a reasonable excuse. The second requirement is that the court must be satisfied about the truth of the statements made in such a petition….” “26…. In a case where the appellant is constantly abused and beaten and her husband has the courage to do so in the presence of the wife father who too is insulted and abused in the presence of the girl, the learned trial Judge appears to us to have been fully justified in coming to the conclusion that the appellant was being tortured and cruelty was being practised on her. The appellant has also stated that respondent No. 1 was threatening to take away her life by administering pills which are ordinarily used for developing photographs, although there is no other evidence on that point. If - 9 - the relations between the husband and wife have reached such a stage that the husband was going about telling every body who came to see him on her behalf that he would let her go only if she gave a deed of divorce, the possibility of his taking recourse to that unfortunate step, cannot be completely excluded. In any case, the apprehension that he may do so, will have a serious effect on the mind of the wife. She is bound to feel un-safe in the company of such a person.” The explanation to Section 9 requires that where a question arises whether there has been a reasonable excuse for withdrawing from the company of the spouse, the burden of proving reasonable excuse is on the person who withdraws from the society. In S.Jayakumari v. S.Krishanan Nair , AIR 1995 Kerala 139, the Court holds: “6. Court cannot take a cavalier attitude in a case where a hapless mother with an infant keeps off from her husband. Normally no wife would do that. To hold that the wife should prove physical assault and then only the petition for restoration of conjugal rights can be dismissed in her favour is - 10 - thoroughly opposed to legal norms, fair play and propriety. Mental pain caused to the wife by husband cannot be lightly brushed aside on the ground that there was no physical violence or torture.” Adverting to the explanation, the evidence of the son of the parties is sufficient to establish that there is a reasonable cause for the respondent for withdrawal. When coupled with the statement of the respondent herself there is no doubt in my mind that she has been subjected to physical and mental cruelty, the husband has been insisting on appropriating the offerings of the temple etc. where the respondent was performing Puja Archna for the general public. I also find from the record that the respondent has been responsible for having electricity and telephone disconnected. This fact is proved from the evidence of RW-3 Shri Mohinder Singh, who is an employee of the Himachal Pradesh State Electricity Board, who states that an application had been given in the office by Shri Kuldip Kumar Dogra, son of Shri Rattan Chand Dogra for the disconnection of the meter and Shri Pradeep Kumar, RW-4 who is working in the office of the Telephone Department at Hamirpur who states on oath that - 11 - Telephone No. 225252 was disconnected on the application of the appellant. A conjoint reading of the evidence of the parties leaves no room for doubt that it would not be possible for the wife (who has the custody of both the children) to live with the appellant-husband. She has been subjected to beatings and threats by him and she reasonably apprehends that it is not safe for her to live with the appellant. In these circumstances, I find no merit in this appeal which is accordingly dismissed. Pending application(s) shall stand dismissed. There shall be no order as to costs. December 8, 2009 (PC). (Dev Darshan Sud), J.