IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL First Appeal No. 37 of 2008 Smt. Punam W/o Shri Vijai Kumar R/o H. No. F-1, Near Devi Mandir, Adrash Colony, Distt. U.S. Nagar ...…………. Appellant Versus Shri Vijai Kumar S/o Shri Suresh Kumar R/o H. No. F-1, Near Devi Mandir, Adarash Colony, Rudrapur, District Udham Singh Nagar. ...…………. Respondent Mr. S.S. Yadav, Advocate for the appellant. Mr. S.K. Mandal, Advocate for the respondent. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble B.S. Verma, J. Hon. Prafulla C. Pant, J. (Oral) This appeal, preferred under Section 19 of the Family Courts Act, 1984, is directed against the judgment and decree dated 25.04.2008, passed by the Judge, Family Court, Udham Singh Nagar, in Matrimonial Case No. 13 of 2007, whereby the said court has allowed the petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955, against the appellant. 2 2) Heard learned counsel for the parties and perused the lower court record. 3) Brief facts giving rise to this appeal are that the appellant Punam got married to respondent Vijai Kumar on 21.02.2006, according to Hindu rites and rituals at Gaganjyoti Barat Ghar, Rudrapur (District Udham Singh Nagar). After her marriage she started living with her husband in his house in Adarsh Nagar, Rudrapur. On 13th of March 2006, the appellant went to her parental house with her mother Onkari Devi and maternal uncle Dharampal Singh, and came back to her husband’s house on 24th of March 2006. Again, the couple lived happily for sometime. On 21st of May 2006, appellant’s brother Anil Kumar came and took his sister (appellant) to her parental house. It is alleged by the respondent in his petition under Section 9 of the Hindu Marriage Act, 1955, that this time the appellant left the house with jewellery, cash and clothes. After some ten-fifteen days, the respondent went to his in- law’s house to call back his wife, but Onkari Devi, mother of the appellant, requested the respondent to permit the appellant to stay in her paternal house. On this respondent came back alone. According to the respondent he made several efforts thereafter, to call back his wife, but to no avail. Hence, the petition was instituted for restitution of conjugal rights. 3 4) The appellant contested the petition before the trial court and filed her written statement. She admitted having married to the respondent and that after living for sometime with her husband, she left on 21.05.2006 with her brother, and went to her parental house. Rest of the contents of the petition are denied by the appellant in her written statement. It is pleaded by her that she was studying in B.Ed. and wanted to complete her studies, as such she refused to leave her studies, and continued to live in her parental house. However, it is stated by the appellant in her written statement before the trial court that she is ready to go back to her husband’s house, and stay there. 5) On the basis of the pleadings of the parties, following two issues were framed, by the trial court: i) Whether, the respondent (present appellant), as alleged in the petition, has withdrawn herself from the society of the petitioner (present respondent) without any reasonable cause. If so, its effect? ii) To what relief, if any, the petitioner (present respondent) is entitled? 6) The trial court after recording the evidence and hearing of the parties found that the husband (present respondent) has proved his case that his wife (present appellant) has withdrawn from the society of her husband without any sufficient cause, and accordingly 4 allowed the petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955. 7) Aggrieved by said judgment and order dated 25.04.2008, passed by the trial court (Judge, Family Court, Udham Singh Nagar), in Matrimonial Case No. 13 of 2007, this appeal is preferred by the wife Smt. Punam. 8) Marriage is admitted between the parties in their pleadings. It is also admitted that for sometime the appellant (wife) lived with her husband and went to her parental house along with her brother and the respondent (husband) had no objection to it. The dispute relates as to the fact whether, thereafter the wife without any sufficient cause refused to come back to join company of her husband, and thereby withdrawn from his society depriving him of his conjugal rights. In the evidence adduced before the trial court P.W. 2 Vijai Kumar (husband) has filed an affidavit stating that he went to Bhupendra Puri, Modinagar, to call back his wife after ten-fifteen days of her stay in her parental house. At that point of time Smt. Onkari Devi (mother of the appellant) and appellant herself asked the present respondent (husband) to let the appellant stay in her parental house for some more days. Thereafter, parents of the husband in the month of June went to the house of the appellant to call her back, on which the appellant told them that she doesn’t like the respondent (husband) 5 as he is not sufficiently educated. P.W. 2 Vijai Kumar has further stated in the evidence filed in the form of affidavit that thereafter respondent (husband) made several phone calls to his wife to persuade her, but to no avail. On 16.07.2006, when the parents of the husband went to the parental house of the appellant on the occasion of ‘TEEJ’ with SINDHARA, appellant, her mother and maternal uncle ill-treated and quarreled with them and told them not to come in their house. With this evidence, P.W. 2 Vijai Kumar has stated that his wife (appellant) has withdrawn herself from the society of the respondent. On the cross-examination of P.W. 2 Vijai Kumar nothing came out which shakes his testimony given in the examination-in-chief. 9) D.W. 1 Smt. Punam in her affidavit states that Vijai Kumar (respondent) and in-laws used to harass the appellant. She has further stated that she was doing B.Ed., and as such, she was unable to go before completing her studies. As to the allegations that she went along with jewellery, cash and clothes, she has denied the same. However, in her statement D.W. 1 Punam (appellant) could not deny that her husband has not come to her parental house to call her back and did not make any phone calls to persuade her to come back. In her cross-examination she admits that she was not ousted from the house of her husband but had gone voluntarily with her brother on 21.05.2006. 6 10) Having re-assessed and weighed the evidence on record of the parties, we concur with the finding recorded by the trial court that it was the wife (present appellant) who withdrew from the society of her husband without any sufficient cause. After completing her B.Ed. it cannot be said that she had any sufficient reason not to join the company of her husband. Therefore, we are of the view that the trial court has committed no error of law in allowing the petition for restitution of conjugal rights filed by the husband. 11) For the reasons as discussed above, this appeal is liable to be dismissed. However, as to the direction that the wife shall go back with ‘STREE DHAN’, the said direction in the impugned decree appears to be unnecessary and it has nothing to do with the restitution of conjugal rights. Therefore, the appeal is dismissed with the observation that the appellant need not to comply the direction to take ‘STREE DHAN’ with her from her parental house to her husband’s house, but the order as to restitution of conjugal rights and direction to the wife (appellant) to join the company of her husband, is affirmed. Accordingly, the appeal stands disposed of. No order as to costs. (B.S. Verma, J.) (Prafulla C. Pant, J.) Dt. June 17, 2009. H. Negi 7