Case: Dilip Vs. Rekha

2. Few facts giving to the Family Court Appeal are stated thus,The appellant (hereinafter referred to as the Husband for the sake of convenience) and the respondent (hereinafter referred to as the Wife) were married at Nagpur according to Hindu rites and custom on 20.08.2002. It was the second marriage for both, the husband and the wife, inasmuch as the marriage of the husband with his first wife was dissolved by a decree of divorce and the first husband of the wife had expired. Both, the husband and the wife, had two issues each from their first marriage at the time of the solemnization of their marriage on 20.08.2002. The wife had two daughters from her first marriage and the husband had two sons from his first marriage. After three years from the solemnization of the marriage, the Wife filed a petition against the husband under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. It was the case of the wife that the husband had married the Wife only with a view to grab her money and property and he had no intention to have normal matrimonial relationship with her. The wife pleaded that the husband used to always say that he would change his wife every four years as if it was his business. It is pleaded that the husband always asked the wife to purchase the household articles and also utilized her money for construction of the first floor and for purchase of several amenities including an iron gate.It is pleaded that the wife used to purchase the grocery from her own income. After two years of marriage, it is the case of the wife that her daughters came to reside in the matrimonial home and the husband physically and mentally harassed her and her daughters. It is pleaded that the Husband used to throw hot water from the bathroom, shout loudly and switch of the lights whenever the daughters of the wife were engaged in their study. It is pleaded that the husband used to threaten the wife that he would murder her two daughters if they stay with him in the matrimonial home. It is pleaded that the Husband had stopped taking dinner in his own house and had started taking the dinner in the house of his aunt. It is pleaded that the wife used to prepare the food for herself and her two daughters but, the husband did not permit her to do so. It is pleaded that the husband had removed the regulator of the cylinder with an intention that the wife and her daughters should remain without food. It is pleaded that she had purchased a kerosene stove to cook the food but, the husband and his two sons would put water in the tank of the kerosene stove. It is pleaded that the wife and the two daughters were residing in the matrimonial home without taking any food due to the misconduct on the part of the husband.It is pleaded that the wife and her daughters used to call for a tiffin from the mess (dabba) but, the husband used to lock the room from outside and prevent the Wife from taking the food. It is pleaded that the TVS Scooty of the Wife was sold by the Husband for a sum of Rs.7,500/and he pocketed the said amount. It is pleaded that though the wife had given a sum of Rs.17,000/to the husband to purchase a Honda Activa for her on Akshaya Tritiya in 2005, the husband purchased a Honda Activa in the name of his son. It is pleaded that the husband used to steal the sarees of the wife from the almirah when she was at Nasik. It is pleaded that when the wife enquired with the Husband about the sarees he had stolen, the husband hit the wife. It is pleaded that though a meeting was called by the parties to solve the disputes amicably and to settle the matter on 10.09.2006, the husband caught hold of the wife with her hair and forcefully threw her out of the matrimonial home. It is pleaded that in the circumstances of the case, a decree of restitution of conjugal rights be granted as the Husband had withdrawn from the company of the Wife, without any reasonable excuse.3. The husband filed the written statement and denied the claim of the wife. Each and every statement of fact as pleaded by the wife, levelling allegations against the Husband was denied by him. After denying the facts pleaded by the wife against the husband, the husband pleaded that the wife was treating the husband with utmost cruelty. The husband pleaded that when the husband got up during the dead of midnight at 3.00 a.m. in the month ofhe saw the wife standing with her hair open and her tongue fully outside the mouth in the Pooja Room. It is pleaded that the wife was involved in witchcraft and the husband was frightened by the act on the part of the wife. It is pleaded that during the stay of the husband with the wife, the husband suffered from high blood pressure and was required to take medicine. It is pleaded that the husband started sleeping separately on the first floor but, the wife used to blow the ash of Dhoop from open window so that it would reach the husband on the first floor in the early morning hours. It is pleaded that the wife used to bring lemon and coconut from one Baba and keep the same in the house. It is pleaded that the wife was so arrogant that the husband had no courage to ask the wife about her acts. It is pleaded that the wife was of suspicious nature and in the month ofwhen the husband was travelling in a generalfor reaching the S.T. bus stand, the wife asked the husband as to whether the same lady passenger in the autorickshaw had accompanied him in the S.T. bus.The husband pleaded that the wife asked the husband what relation he had with the lady passenger. It is pleaded that the wife stole the undergarments of the husband continuously for one month as a result of which he was required to purchase new undergarments almost daily. It is pleaded that the acts on the part of the wife compelled the husband to sleep on the first floor. It is stated that the wife had fought with the husband, pushed him and scratched his cheek with such force that his cheek had a bleeding injury. It is pleaded that the wife used to regularly come to the workplace of the husband and create a scene. It is pleaded that it would not be possible for the husband to live with the wife under one roof. It is pleaded that in the circumstances of the case, a decree of restitution of conjugal rights should not be passed in favour of the wife.4. On the aforesaid pleadings of the parties, the Family Court framed the issues. The wife tendered her evidence and closed the evidence on her side. The husband examined himself and also examined two other witnesses namely, Aleem Mohd. Haneef Shiledar and Narayan Kawaduji, Supervisor in the Bank of Maharashtra. The Family Court considered the evidence tendered by the parties and on an appreciation of the same, by the judgment, dated 23.02.2010, allowed the Hindu Marriage Petition filed by the wife and granted a decree of restitution of conjugal rights, thereby directing the husband to join the company of the wife for cohabitation. The judgment of the Family Court is challenged by the husband in this Family Court Appeal.

Reasoning:
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.