Case: Dilip Vs. Rekha

Not only had the wife pleaded the aforesaid facts, but the wife had also pleaded that the husband had misappropriated a sum of Rs.7,500/- that was received by her towards the sale of her TVS Scooty and had mis-utilized a sum of Rs.17,000/- that was required to be utilised for the purchase of her Honda-Activa.The wife has finally admitted in her cross-examination that though the husband had harassed her, she was ready to cohabit with him. This statement could be made only if there was a compulsion on the wife to stay with the husband. Such a statement should not have been made by the wife when she had filed the petition for restitution of conjugal rights. Most of the statements made by the wife in the petition have been falsified by her evidence in the cross-examination. The husband wanted to change the wife every four years was falsified as this was the second marriage of the husband and the first marriage of the husband lasted more than 13 years. The wife had also admitted that she had no property in her name and that the husband was earning much more than her. She had further admitted in her cross-examination that both the husband and the wife contributed for the household expenses. If that be so, the claim of the wife that the husband had married her for the purpose of grabbing her money, was false. The case of the wife that the entire household expenses were borne by her was also falsified by her, in the cross-examination that the husband and wife contributed towards the household expenses. It is also difficult to believe the case of the wife that the husband had threatened the wife that he would murder her two daughters from the first marriage as if it was so, the wife would have never approached the Family Court with a prayer for restitution of conjugal rights.13. The Family Court, however, did not consider the entire evidence tendered by the parties on record. The Family Court recorded the reasons only in a couple of paragraphs of the short judgment that is challenged in this Family Court Appeal. The Family Court has rejected the entire evidence of the husband in regard to the acts of cruelty by the wife only on the ground that the husband had not adduced the evidence of independent witness that had reliable knowledge or information in regard to the acts of cruelty including his allegation in respect of witchcraft being practised by the wife. The Family Court erroneously observed that the case of the husband that the wife scratched his cheek and he suffered a bleeding injury was false and he did not produce any medical evidence to that effect. No husband whose cheek has been clawed and who suffers an injury due to the act of her wife would approach the Doctor and secure a medical certificate for the same. The entire evidence of the husband is lightly brushed aside solely on the ground that the husband had not examined independent witnesses and had not produced medical certificate. The observations of the Family Court to the aforesaid effect are incorrect. In fact, the wife had not examined any witness in support of her case. The husband had examined two independent witnesses, namely, Allem Mohd. from his locality, who had personal knowledge about the nature of the husband and wife and the Bank Supervisor who deposed that the husband had secured a loan from the Bank. In fact, it was necessary for the wife to have examined some witnesses to prove that the husband was behaving badly with her, that he threw the hot water from the bath room, that he was regularly shouting loudly and was switching off the lights from the room in which the daughters from her first husband were studying.The wife could have examined one of her daughters who were of marriage age to tender evidence in the Court in respect of at least switching off the lights when they were studying. However, the wife did not examine any witness in support of her case, apart from herself. The Family Court erroneously disbelieved the evidence of Aleem Mohd. solely on the ground that he was residing in the same locality and was the friend of the husband. In fact, a person from the same locality only could tender evidence on the facts involved in the case. Merely because Aleem Mohd. was the friend of the husband, his evidence could not have been lightly brushed aside. The Family Court did not consider that the wife had painted a very dark picture of her husband and despite that she was seeking a decree for restitution of conjugal rights. The Family Court observed that there was no concrete reason for the parties to live separately. On the basis of the pleadings of the parties, both the husband and the wife, it was necessary for the Family Court to hold that there were several justifiable reasons for the parties to live separately. The statement of wife that though the husband had behaved badly with her and had harassed her, she is ready to join his company cannot be enough for granting a decree for restitution of conjugal rights. On a perusal of entire evidence on record, we are clearly of the view that it is necessary to hold that the husband had not withdrawn from the company of the wife without any just and reasonable excuse. In the circumstances of the case, it was not possible for a middle aged parties to stay under one roof and the parties had separated. The Family Court ought not have granted a decree for restitution of conjugal rights in favour of the wife without considering the entire evidence on record. Neither is the evidence considered by the Family Court nor is it discussed in detail. We are firmly of the view that the Family Court was not justified in granting a decree for restitution of conjugal rights.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]The wife could have examined one of her daughters who were of marriage age to tender evidence in the Court in respect of at least switching off the lights when they were studying. However, the wife did not examine any witness in support of her case, apart from herself. The Family Court erroneously disbelieved the evidence of Aleem Mohd. solely on the ground that he was residing in the same locality and was the friend of the husband. In fact, a person from the same locality only could tender evidence on the facts involved in the case. Merely because Aleem Mohd. was the friend of the husband, his evidence could not have been lightly brushed aside. The Family Court did not consider that the wife had painted a very dark picture of her husband and despite that she was seeking a decree for restitution of conjugal rights. The Family Court observed that there was no concrete reason for the parties to live separately. On the basis of the pleadings of the parties, both the husband and the wife, it was necessary for the Family Court to hold that there were several justifiable reasons for the parties to live separately. The statement of wife that though the husband had behaved badly with her and had harassed her, she is ready to join his company cannot be enough for granting a decree for restitution of conjugal rights. On a perusal of entire evidence on record, we are clearly of the view that it is necessary to hold that the husband had not withdrawn from the company of the wife without any just and reasonable excuse. In the circumstances of the case, it was not possible for a middle aged parties to stay under one roof and the parties had separated. The Family Court ought not have granted a decree for restitution of conjugal rights in favour of the wife without considering the entire evidence on record. Neither is the evidence considered by the Family Court nor is it discussed in detail. We are firmly of the view that the Family Court was not justified in granting a decree for restitution of conjugal rights.