IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL First Appeal No. 69 of 2009 Smt. Meera W/o Shanker D/o Sri Mahesh R/o Opposite to Power House Kiccha, District Udham Singh Nagar. ……Appellant. Versus Shanker S/o Sri Hardev R/o Old Khera, Rudrapur District Udham Singh Nagar. .……….Respondent. Shri M.K. Goyal, Advocate for the appellant. Shri S.K. Mandal, Advocate for the respondent. Coram: Hon’ble Prafulla C. Pant, J. Hon’ble B.S. Verma, J. Oral:-Hon’ble Prafulla C. Pant, J. This appeal, preferred under Section 19 of Family Courts Act, 1984, read with Section 28 of Hindu Marriage Act, 1955, is directed against the judgment and order dated 17.03.2009, passed by Judge, Family Court, Udham Singh Nagar, in Matrimonial Case No. 30 of 2006, whereby said court has allowed the petition, moved under Section 9 of Hindu Marriage Act, 1955, by husband (petitioner/respondent). 2. Heard learned counsel for the parties and perused the lower court record. 2 3. Brief facts, giving rise to this appeal are that petitioner Shankar (present respondent), instituted suit No. 30 of 2006, against the appellant under Section 9 of Hindu Marriage Act, 1955. It is pleaded by him in the petition that he got married to Smt. Meera (present appellant) about two years before moving the petition. It is further pleaded that a female child was born out of the wedlock. It is further pleaded in the petition, moved by the husband that the appellant was not happy in the joint family of the petitioner and started quarrelling with him. On 19.08.2005, the day of Raksha Bandhan, she left house of the petitioner, with her brother Ramanand, who promised that after couple of days, appellant would be sent back to her matrimonial house. However, she did not return even after being requested again and again by the petitioner. Alleging that the appellant has withdrawn from the society of the petitioner, without any sufficient cause, the petition under Section 9 of Hindu Marriage Act, 1955, was moved. 4. Appellant contested the petition before the trial court, and filed her written statement in which she admitted that she got married to the petitioner, and a female child was born out the wedlock. However, the rest of the contents of the petition are denied by her. She has stated that the petitioner used to ask her (appellant) to bring Rs. 50,000/- from her parental house. Due to non- fulfilment of said demand of dowry, she was ousted from her matrimonial house. It is also pleaded that the petitioner used to treat her with 3 cruelty. It is also alleged that the appellant’s life would be in danger if she is made to go to her matrimonial house. 5. On the basis of the pleadings of the parties, the trial court framed following three issues:- 1. Whether the respondent has withdrawn from the society of the petitioner without any sufficient cause? 2. Whether the petition for restitution of conjugal rights deserves to be allowed? 3. To what relief, if any, the petitioner is entitled? The trial court after recording the evidence and hearing the parties, found that the wife (appellant) had withdrawn herself from the society of the petitioner (present respondent) without any sufficient cause and allowed the petition under Section 9 of Hindu Marriage Act, 1955. Aggrieved by said judgment and order dated 17.03.2009, passed by Judge, Family Court, Udham Singh Nagar, in matrimonial case No. 30 of 2006, this appeal is preferred by the wife. 6. Admittedly, the parties are married to each other. It is also admitted that a female child was born out of the wedlock. It is also not disputed that the appellant is living in her parental house since 19.08.2005. The dispute relates as to whether she was ousted on that day by her husband from her matrimonial house or she left on her own volition and refused to come back to her matrimonial house without any sufficient cause. The evidence adduced in the form of 4 affidavits and oral evidence, on behalf of both the parties, supports their cases. This Court has to examine that which story is more believable, in the facts and circumstances of the case. 7. Learned counsel for the appellant drew attention of this Court to the cross examination of P.W. 2 Sangeeta, who has been produced as a witness before the trial court on behalf of the husband. This witness is sister-in-law (DEVRANI) of the appellant. In the second para of her cross examination, she states “tc ehjk dks ?kj ls fudkyk Fkk ml oDr eSa ?kj ij gh FkhA xokg lq’khyk Hkh esjs ?kj ij gh FkhA” (WHEN MEERA WAS OUSTED FROM HOUSE, I WAS AT HOME. WITNESS SUSHILA WAS ALSO THERE). Attention of this Court is also drawn to statement of P.W. 3 Sushila, who was got examined on behalf of the petitioner (husband), before the trial court. In para-4 of her cross examination, she also states “ehjk dks tc ?kj ls fudkyk Fkk eSa gjnso ds ?kj ij gh ekStwn FkhA” (AT THE TIME WHEN MEERA WAS OUSTED, I WAS IN THE HOUSE OF HARDEV). It is pertinent to mention here that Shankar (husband) is son of Hardev. In the light of the above statement, made in the cross examination by the two witnesses, produced on behalf of the husband, does support the case of the appellant (wife) that she was ousted from her husband’s house and she feels that her life is in danger if made to go to her matrimonial house. After going through the evidence on record, this Court is of the view that there was sufficient cause with the wife to live separately from her husband, and in the circumstances, decree of restitution of 5 conjugal rights, is dismissed. For the reasons, as discussed above, the appeal deserves to be allowed. The same is allowed. The impugned judgment and decree dated 17.03.2009, passed by Judge Family Court, Udham Singh Nagar, in matrimonial case No. 30 of 2006, is set aside. Petition under Section 9 of Hindu Marriage Act, 1955, moved by the husband, is dismissed. Costs easy. (B.S. Verma, J.) (Prafulla C. Pant, J.) Dt:29.07.2009 Sweta 6 7 8 9 10 11