FAO No.191-M of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.191-M of 2007 (O&M) Date of decision: 28.07.2009 Suman ..Appellant Versus Rajnish Jalota ...Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present:- Mr.Sameer Sachdeva, Advocates, for the appellant. Mr..S.C.Chhabra, Advocate, for the respondent. --- VINOD K. SHARMA,J.(oral) This appeal by the appellant/wife is directed against the judgment and decree dated 21.05.2007 passed by the learned Additional Civil Judge (Senior Division), Phagwara allowing the petition moved by the respondent/husband filed under section 9 of the Hindu Marriage Act (for short the Act) seeking a decree of restitution of conjugal rights. The respondent/husband brought a petition under section 9 of the Act, on the ground that he was married with the appellant on 30.5.1995 FAO No.191-M of 2007 2 at Ferozepur according to Hindu rites and ceremonies. After the marriage the parties cohabited and lived together and out of this wed-lock two female children were born. It was the case of the respondent/husband that after six months of marriage appellant/wife changed her behaviour towards the respondent/husband and other family members and started to disrespect the elders, and pressurize the respondent to ask his brothers and widow mother, to leave the house as she did not want to live in joint family. The case of the respondent/husband was that two brothers and his widow mother were living with him in one room. However, keeping in view the happiness of the appellant/wife, he decided to separate in mess from his brothers, but to remain joint in mess with his mother. After this arrangement some time passed peacefully, but after some months the appellant again raised her demand and asked the other family members of the respondent to leave the house. The behaviour of the appellant became cruel towards him and his daughters, as also qua other family members. The appellant also refused to cook meals and take care of her daughters. The appellant thereafter, left her both daughters with the respondent/husband without any reasonable cause, and left the matrimonial home in the absence of respondent/husband, without the consent of the family members. She also took away valuable goods. In spite of best efforts she refused to come with the respondent to join his company. The case set up, therefore, was that the appellant/wife had withdrawn from the society of the respondent/husband without any reasonable cause. On notice, appellant/wife appeared and contested the claim of the respondent, wherein the allegations levelled in the petition were denied. FAO No.191-M of 2007 3 The allegations regarding change of behaviour and disrespect to family members of the respondent/husband were specifically denied. It was pleaded that after the marriage, the family members of the respondent/husband had shown their dissatisfaction, to the dowry given in the marriage. The allegation of demand of dowry was levelled. It was pleaded that demand of Maruti Car and cash was made from the respondent. The case of the appellant/wife was that the parents of the appellant spent about Rs.20,000/- (Rupees twenty thousand only) on the delivery of first female child at Khanna Nursing Home, Ferozepur and thereafter in the month of January, 1998 Rs.15,000/- (Rupees fifteen thousand only) were handed were to the respondent/husband in cash along with clothes and other goods. However, this did not help in changing the behaviour of the family of the respondent/husband. On 26.6.2000, a cheque of Rs.51,000/- (Rupees fifty one thousand only), a gold ring, and clothes for the religious ceremony of second child were also given to the respondent along with another sum of Rs.20,000/- (Rupees twenty thousand only), for the construction of house. She claimed that she was turned out of her matrimonial home, and further that no panchayat was convened by the respondent/husband, whereas the parents of the appellant convened panchayat 2-3 times. On the pleadings of the parties, the following issues were framed:- 1. Whether the respondent has withdrawn from the society of the petitioner with sufficient cause? OPR FAO No.191-M of 2007 4 2. If issue No.1 is not proved, whether petitioner is entitled for restitution of conjugal rights? OPA 2. Relief. Keeping in view the fact, that it was the admitted case that the appellant was living separately the onus of issue No.1 was placed on the appellant. She was directed to adduce evidence first. In support of her case the appellant/wife appeared as RW 2 and examined her father as RW 1. In their statements they reiterated the stand taken in the written statement. The respondent/husband in his evidence examined himself as PW3 and also examined Mangat Ram as PW 1 and Rajesh Kumar as PW 2. Mangat Ram appearing as PW 1 made a statement that he new both the parties very well. The parties were married on 30.5.1995 at Ferozepur and after the marriage the parties lived at Phagwara. He also deposed about the consummation of marriage, and birth of two children. He supported the version set up by the husband in the petition. Similarly, PW 2 Mangat Ram supported the case set up by the respondent/husband. Respondent/husband appearing as RW 3 also reiterated the stand taken in the petition. Learned matrimonial court took into consideration the report Ex.RW1/P-1 which was submitted by the learned District Judge, Ferozepur to the Deputy Registrar (Criminal), Punjab & Haryana High Court, Chandigarh, wherein it was reported that attempts for reconciliation were made, wherein respondent/husband had unconditionally agreed to rehabilitate the appellant along with two children, whereas the attitude of appellant/wife was adamant. Learned matrimonial court, therefore, held FAO No.191-M of 2007 5 that the appellant seems to be under the influence of her mother. The learned lower court also came to the conclusion that the evidence led by the respondent/husband inspired confidence, as in spite of lengthy cross- examination nothing could come out, which could support the plea set up by the appellant. The report placed on record showed that respondent was also examined as AW 3, where again his stand was that he wanted to join the company, whereas it was the appellant/wife who refused cohabitation with the respondent/husband. Learned matrimonial court also recorded a finding that the appellant has failed to show, as to why she has left the company of her husband and as to why no attempts were being made to have the custody of the children. The conclusion drawn by the learned matrimonial court, on appreciation of evidence was that the respondent/husband was willing to resume cohabitation but it was the appellant who without any reasonable cause, was staying away from the company of her husband, and allowed the petition by passing a decree of restitution of conjugal rights. Mr.Sameer Sachdeva, learned counsel appearing on behalf of the appellant vehemently contended that the learned matrimonial court committed an error in taking into consideration, the compromise proceedings held in camera before the learned District Judge, Ferozepur, to record a finding against the appellant. The contention of the learned counsel for the appellant was that the said piece of evidence could not be looked into. This contention of the learned counsel for the appellant cannot be accepted. The evidence taken into consideration was part of evidence FAO No.191-M of 2007 6 duly proved by RW3, by way of affidavit along with report which was taken on record as Ex.RW3/1. Learned counsel for the appellant thereafter contended that the learned court below committed an error in decreeing the petition for restitution of conjugal rights though it was proved on record that there were consistent demands for dowry and as a matter of fact the payment of Rs.51,000/- by way of cheque stood duly proved on record. This plea of the learned counsel for the appellant cannot be accepted, though a specific stand was taken that a sum of Rs.51,000/- was paid by way of cheque, however, no evidence was led to prove encashment of cheque. Learned counsel for the appellant contends that the finding of the learned trial court holding therein, that there was nothing on record to justify as to why the appellant was not willing to resume cohabitation, is not correct. The contention of the learned counsel for the appellant is that in the pleadings as well as in the evidence a specific averment was made that FIR was got registered against the respondent, and her family members, the finding, therefore, is against the record. The learned matrimonial court has, thus, misread the evidence. This plea of the appellant is again misconceived. Except for making averment, a bald statement, nothing was proved on record for exhibiting the FIR which was said to have been lodged. Furthermore, learned counsel for the appellant has stated at bar that, the respondent and other family members have been acquitted in the case. The learned matrimonial court was, therefore, right in holding FAO No.191-M of 2007 7 that except bald statement there was no other material to justify her leaving of matrimonial home. The findings recorded by the learned lower court do not suffer from any error which may call for interference by this court. Dismissed. 28.07. 2009 ( VINOD K. SHARMA ) rp JUDGE