IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL First Appeal No. 80 of 2007 Amar S/o Sri Munsi Ram R/o Gali No. 3 Modal Colony Rudrapur, Tehsil Kichha District Udham Singh Nagar. ….....Appellant. Versus Smt. Pooja W/o Sri Amar D/o Sri Roshan Lal Tehsil-Nagimabad District Bijnor At present R/o Mohalla Gadariyan Shara Wali Gali Ka Paas Pal Dharamshala, Nagimabad (U.P.) .……….Respondent. Shri M.S. Pal, Sr. Advocate, assisted by Shri D.N. Sharma and Shri C.S. Dumka, Advocate, for the appellant. Shri Shailendra Nauriyal, Advocate for the respondent. Coram:Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. Per:-Hon’ble Prafulla C. Pant, J. This appeal, preferred under Section 96 of Code of Civil Procedure, 1908, read with Section 19 of Family Courts Act, 1984, is directed against the judgment and order dated 05.10.2007, passed by Judge, Family Court, Udham Singh Nagar, whereby petition moved by the petitioner/appellant 2 under Section 9 of Hindu Marriage Act, 1955, is for restitution of conjugal rights, (registered as suit No. 169 of 2005), is dismissed. 2. Heard learned counsel for the parties and perused the lower court record. 3. Brief facts of the case are that petitioner/appellant, moved a petition under Section 9 of Hindu Marriage Act, 1955, before the trial court (Judge, Family Court, Udham Singh Nagar) with the pleading that he got married to respondent Smt. Pooja according to Hindu rites on 13.04.2004. It is further pleaded that the two lived together happily for sometime. However, after couple of months, the behaviour of the respondent started changing. It is further pleaded that Kishan Lal Gumbar brother-in-law (Jija) of respondent came to the petitioner’s house and assaulted him and his other family members. When he was asked not to do so, the respondent got annoyed and started making allegations against the petitioner that he has insulted her brother-in-law. Thereafter, the respondent left the petitioner and went to her parents’ house. It is further pleaded by the petitioner/appellant that he made attempts twice or thrice to take the respondent back to his house but she refused to join the matrimonial home. Alleging 3 that due to the conduct of respondent, the petitioner is suffering physical and mental agonies, the petition of restitution of conjugal rights is moved before the trial court. 4. The respondent contested the petition and filed her written statement in which she has admitted that she got married to the petitioner. However, rest of the pleadings made in the petition are denied by her. It is stated by her that for non fulfilment of demand of dowry, the petitioner and other members of his family harassed the respondent, and after six months of marriage, she was made to leave her husband’s house. It is further pleaded by her in the written statement that at that time she was in family way and on 16.02.2005, she delivered a female child at Garmahadev (Nazibabad) for which the entire expenses were borne by her father, and petitioner did not even bother to see her or his own daughter. It is further alleged in the written statement that on 07.07.2005, at about 11:00 a.m. petitioner, his younger brother Rajesh and mother Bimla came to the parental house of the respondent and hurled abuses and assaulted her. It is further stated in the written statement that the respondent lodged First Information Report of the incident with Police Station Nazibabad, relating to offences punishable 4 under Sections 498 A, 323, 504 I.P.C. and one punishable under Section ¾ Dowry Prohibition Act, 1961, against the petitioner, his mother and his brother. It is further stated in the written statement that after investigation, charge sheet was filed against the three by the police and they had to surrender and get themselves bailed out. Lastly, it is pleaded that the respondent is not living in her parental house on her volition, rather she is forced to live there. 5. On the basis of the pleadings of the parties, the trial court framed following issue:- 1. Whether the respondent without any sufficient reason has deserted the petitioner and is the suit (petition) for restitution of conjugal rights deserves to be decreed? 6. After recording the evidence and hearing the parties, the trial court held that respondent had reasonable excuse for not living with the petitioner and as such, the petition under Section 9 of Hindu Marriage Act, 1955, moved by the petitioner is dismissed. Aggrieved by said judgment and order dated 05.10.2007, passed by Judge, Family Court, Udham Singh Nagar, in suit No. 169 of 2005, this appeal is preferred by the husband (petitioner). 5 7. Admittedly, the petitioner is married to respondent on 13.04.2004. It is not disputed that the two lived together for some months and thereafter she delivered a female child on 16.02.2005 in her parental house. It is also not disputed that since then, the respondent has not joined her husband in his house. The question before this Court is whether the respondent (wife) has withdrawn from the society of her husband (petitioner) without any reasonable excuse to satisfy the requirements of Section of Hindu Marriage Act, 1955. The petitioner (P.W. 1 Amar) in his statement before the trial court, which is supported by P.W. 2 Om Prakash Kakkar and P.W. 3 Shyam Lal, has alleged that respondent has left her husband’s house without any sufficient reason and even after making attempts, she did not come back to her husband’s house. 8. On the other hand, D.W. 1 Smt. Pooja (respondent), whose statement is supported by D.W. 2 Om Prakash, has stated that petitioner and his family members harassed her for non fulfillment of demand of dowry. It is further stated by D.W. 1 Smt. Pooja, that petitioner never bothered to see the respondent when she delivered female child on 16.02.2005 in her parents’ house for which her father had to bear all the expenses. It 6 is further stated by D.W. 1 Smt. Pooja that on 07.07.2005, at about 11:00 a.m., the petitioner along with his mother and brother, came to her parental house and assaulted her. It is further stated by her that she lodged First Information Report relating to offences punishable under Sections 498A, 323 I.P.C. and one punishable under Section ¾ Dowry Prohibition Act, 1961, with Police Station Nazibabad, which is registered as crime No. 938 of 2005. It is further stated by her that after investigation, charge sheet was filed against the three accused and they had to surrender in the court and get themselves bailed out. It is further stated that said case is in progress in the court of Judicial Magistrate, Nazibabad, registered, as criminal case No. 3213 of 2005. 9. Perusal of the copy of First Information Report, which is on the lower court record, shows that respondent after getting her medically examined, lodged the First Information Report. In her cross examination, D.W. 1 Smt. Pooja (respondent) has stated that if she is made to live in her husband’s house, she apprehends danger to her life. 7 10. Considering the facts and circumstances of the case and after going through the evidence on record, it cannot be said that the respondent had no reasonable excuse to withdraw from the society of the petitioner. Therefore, we do not find any error of law or that of fact, committed by the trial court. Since the respondent has successfully proved on the record that she had reasonable excuse to withdraw from the society of the petitioner, the decree of restitution of conjugal rights, as prayed by the petitioner, cannot be passed. 11. For the reasons, as discussed above, this appeal is liable to be dismissed. The same is dismissed. (Dharam Veer, J.) (Prafulla C. Pant, J.) Dt: 04.09.2008 Sweta 8 9 10 11 12 13