F.A.O. No. 64-M of 2001 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O. No. 64-M of 2001 Date of decision: 29.04.2009 Subhash Kumar ...Appellant Versus Usha Rani ...Respondent CORAM: HON'BLE MR. JUSTICE S.D.ANAND. Present: Mr. K.S.Kahlon, Advocate for Mr. D.S. Pheruman, Advocate for the appellant. None for the respondent. ***** S.D.ANAND, J. The appellant-husband filed a plea under Section 9 of the Hindu Marriage Act which (plea) did not find favour with the learned Trial Court. It came to be negatived, vide judgment and decree dated 24.1.2001. The marriage between the parties was solemnised on 28.1.1991. The parties cohabited thereafter, as husband and wife, and two children (a son and a daughter) were born out of their union. Both the children are presently putting up with the respondent-wife. There were no creases in the interse relationship of the parties till six months thereafter when the brother of the respondent-wife enticed a real sister of the appellant-husband and started living with her. That act on the part of the brother of the respondent-wife was not appreciated by both the families. After some time thereof, the F.A.O. No. 64-M of 2001 -2- **** relations between the aforementioned brother of the respondent with his parents became cordial. Thereafter, the respondent and her parents started pressurising the appellant to bring his enticed sister to his own house and to marry her off to some one else. The appellant was not agreeable to that proposal because he had severed all his relations with the 'enticed' sister. On account of the resistance aforementioned on the part of the appellant, the respondent-wife withdrew from his conjugal society and announced that she would get back to the matrimonial house only when the proposal aforementioned would be acceptable to him. It was also an averment that even the birth of a daughter (at a subsequent point of trial) at the natal house of the respondent-wife was not intimated to him. It was on the above allegations that the appellant filed a plea for the restitution of the conjugal rights. The respondent-wife averred that the petition under Section 9 of the Hindu Marriage Act was a counter blast to a petition under Section 125 Cr.P.C. which she had already filed against the appellant-husband in a Court of law. She denied the averments made by the appellant-husband about the circumstances under which the parties were no longer cohabiting as husband and wife. She averred that the appellant-husband had always treated her in a cruel manner and he, being a big-boozer, would belabour her while being under the influence of liquor. She did not intimate the behaviour of the appellant to her parents in the fond hope that he F.A.O. No. 64-M of 2001 -3- **** might improve in due course of time but things did not go her way of perception. She was deserted at the time of birth of first child. The delivery took place at Civil Hospital, Saroya. It is her parents who paid for the delivery. The birth of the child was duly intimated to the appellant who never bothered her to visit her or the newly born child. However, respondent-wife herself went to the matrimonial house with the first child. The appellant did not relish the birth of that child as he was born handicapped. His legs were not in proper form and “there was a sore on the back of the child”. In spite of the respondent having told the appellant that it was an act of the God and no blame for the deformity of the child could be fastened upon her, the appellant advised her “to throw the child in a dustbin or her parents may arrange to keep him”. It was in the light of the wishes of the appellant, that “the said child was brought at village Dayal.”. Though the parties resumed cohabitation thereafter but the behaviour of the appellant did not undergo any change for the better. He even once tried to put the respondent afire but her neighbours came to her rescue. At the time the respondent was pregnant with the second child, she was visited by mother of the appellant who announced to her that she (mother of the appellant) was inclined to marry him ( appellant) off to some other girl. She proposed that the respondent should dirvorce the appellant. Under compulsion, signatures of the respondent were also obtained on certain blank papers. The respondent averred an apprehension that those papers might be utilised to make out a divorce plea. The respondent continued to F.A.O. No. 64-M of 2001 -4- **** stay over at her natal house because mother of the appellant had held out a threat that she would be done to death if she ever came to the matrimonial house. The trial proceeded on the following issues:- “1) Whether the respondent has withdrawn from the society of the petitioner with reasonable excuse?OPR 2) Relief.” The learned Trial Judge recorded a finding adverse to the appellant under the aforesaid issue. I have heard Mr. K.S.Kahlan, learned counsel appearing on behalf of the appellant and have carefully gone through the file. None appeared on behalf of the respondent to assist this Court. The learned counsel appearing on behalf of the appellant argued that the appellant was throughout inclined to have the respondent restored to the matrimonial house and had been repeatedly taking panchayats for the purpose aforementioned but that it was the respondent only who was reluctant to come over to the matrimonial house. He also denied that the petition under Section 9 of the Act was a counter blast to the proceedings under Section 125 Cr.P.C., though he was not in a position to dispute that the latter proceedings did actually come to be filed prior in point of time. The learned Trial Court has recorded a finding of fact that the appellant had adduced evidence qua the taking of panchayat only once to the natal village of the respondent. It further recorded F.A.O. No. 64-M of 2001 -5- **** that there was no evidence to prove that appellant had ever been to the natal house of the respondent to fetch her or to make a bid for patch-up. It is apparent from the record that the petition under Section 125 Cr.P.C. came to be filed on 28.7.1997 (Annexure P-1). The petition under Section 9 of the Act came to be filed on 16.12.1997. The period aforementioned of the filing of the petition under Section 125 Cr.P.C. and the petition under Section 9 of the Act would be a clear pointer to the fact that the latter petition had been filed as a counter blast to the former petition. In that context, it may be noticed that the learned Trial Court further recording a finding of fact that “this petition for restitution of conjugal rights was filed only when summons of application under Section 125 of the Cr.P.C. which was filed by respondent Usha Rani were sent to Subhash Kumar.” The appellant has not been able to prove that he had even once taken the panchayat to the natal village of the respondent to fetch her. It may be noticed, in the context, that in the course of cross-examination, the appellant conceded that he was not in a position to indicate the date, month or the year in which the panchayat of village had gone over to the natal village of the respondent to fetch her. Even if it is assumed, for the sake of arguments, that he did take panchayat once, that would not be sufficient to record a finding that he was actually inclined for the restitution of conjugal rights. The parties had two children, both of F.A.O. No. 64-M of 2001 -6- **** whom were living with the respondent at her natal house. A person similarly circumstanced, as the petitioner in the present case was, would be expected to have made an attempt more than once to patch up things with the respondent-wife. The love for progeny ought to have been instrumental in the relevant behalf. This observation would require pertinent notice in the light of an averment made by the appellant-husband that he had been throughout inclined to have her at the matrimonial house. It may be particularly notice that the respondent-wife had made a precise averment in the pleadings that the appellant was not happy on the birth of the male handicapped child, that he wanted her to throw the child into the dustbin or that he should be brought up by the parents of the respondent. In the course of the deposition at the trial, the appellant did not utter a word to deny those averments. He also did not even utter a word to falsify the allegations by the respondent wife that the birth of the child had been duly intimated to him but he did not turn up to visit either the respondent-wife or the newly born child. If the appellant had actually been so inclined, he ought to have availed of that opportunity to visit her in-laws house in the hope that there some patch up inclination could arise in the mind of the respondent-wife. In a plea of restitution of conjugal rights, the averring party has to prove that the party complained-against had withdrawn from the conjugal company without any justification further and that the party filing the plea is inclined to call upon the party opposite to F.A.O. No. 64-M of 2001 -7- **** resume cohabitation. In the present case, the appellant has no t able to prove that he made any sincere efforts to fetch the respondent from her natal house. An effort in the relevant behalf may have been appropriate and natural, particularly in view of the fact that the relationship between them had been embittered by the elopement of the respondent's brother with the sister of the appellant. The learned Trial Court has noticed all the relevant facts and circumstances of the case which are supportive of the view obtained by the learned Trial Court that the appellant has not been able to prove his entitlement for restitution of conjugal rights. The petition is held to be denuded of merit and is ordered to be dismissed. April 29, 2009 (S.D.Anand) Pka Judge