2003(4) ALL MR (JOURNAL) 24
(PUNJAB & HARYANA HIGH COURT)

M.L. SINGHAL, J.

Satya Devi Vs. Sat Pal

First Appeal From Order No.175-M of 1986

25th September, 2002

Petitioner Counsel: Mr. SHIV KUMAR SINGLA
Respondent Counsel: Mr. TRIBHUWAN SINGLA

Hindu Marriage Act (1955), S.9 - Restitution of conjugal right - Petition filed by husband after inordinate delay of 7 years - Held decree of restitution was misconceived. (Para 8)

JUDGMENT

JUDGment :- Sat Pal was married to Satya Devi in February, 1975 according to Hindu rites and ceremonies. After marriage, they cohabited at village Sehjra, Tehsil Barnala i.e. the place of Sat Pal. She gave birth to a son from the loins of Sat Pal on 1.4.1976 at her parents' house in village Hathan. It may be mentioned here that she had gone to the place of her parents in February, 1976 for delivery. As per Sat Pal, on hearing the news of the birth of son to his wife, he went to the place of his in-laws with customary presents. He requested her to accompany him to the matrimonial home along with the child. She refused to accompany him to the matrimonial home saying that she could accompany him provided he started living separate from his parents. She told him that she would not cohabit with him until he started living separate from his parents and until he put up residence separate from his parents, she would continue putting up with her parents at village Hathan, Tehsil Dhuri. She further told him that she could cohabit with him if he set up some shop/business at Malerkotla. He put up residence separate from his parents, still, she did not agree to stay and cohabit with him saying that she could not stay and cohabit with him at village Sehjra. She could stay and cohabit with-him if he shifted to some town/city. He told her that he was poor/unable to bear the expense of city life. His inability to shift her to city/town brought about stalemate between them and she persisted in putting up away from the matrimonial home with her parents at village Hathan. He took Panchayats to her with a view to bring her back to the matrimonial home. She refused point blank to accompany him to the matrimonial home saying that she could not stay and cohabit with him at village Sehjra. Her parents' reply was also the same. As per him, she withdrew from his society without reasonable cause or excuse. He was also yearning for her company. It was she who refused to give him company as wife. In 1983, he convened a Panchayat and put his problem before them. After he had failed to secure conjugal society with the intervention of the Panchayats convened from time-to-time, he filed this petition for restitution of conjugal rights eventually in December, 1983.

2. Wife contested this petition urging that this petition was filed malafide by the husband at a time when her application under Section 125, Cr.P.C. for obtaining maintenance was pending before the Magistrate. It was denied that she withdrew from the society of the husband. Rather it is the husband who has withdrawn from her society. He and his parents were not satisfied with the dowry brought by her in marriage. Her parents had given her dowry beyond their capacity. 5-7 days after marriage, he and his parents started mal-treating her and compelling her to bring more dowry. She expressed her inability to fulfil this demand of theirs. She was turned out of the matrimonial home on 18.7.1975 when she was pregnant. She was compelled to stay with her parents. It was denied that she refused to stay and cohabit with the husband saying that she would stay and cohabit with him provided he puts up separate from his parents or sets up some business at Malerkotla. It was denied that he ever brought any Panchayat with a view to rehabilitate her in the matrimonial home. She and her father made several efforts for her rehabilitation in the matrimonial home. Her rehabilitation into the matrimonial home was rebuffed by her husband and his parents. It was also urged that he was not entitled to the restitution of conjugal rights when he had knocked the door of the Court after 8 years i.e. after inordinate delay.

3. Vide order dated 2.8.1986, additional Senior Sub-Judge, Barnala allowed this petition and gave the husband decree for restitution of conjugal rights against the wife in view of his finding that she had withdrawn from his society without reasonable cause or excuse.

4. Wife has come up in appeal to this Court.

5. Learned Counsel for the appellant submits that the husband filed petition for restitution of conjugal rights malafide after 8 years of the departure of the wife from the matrimonial home. He submits that if the husband had desired the company of his wife, he would have sought restitution of conjugal rights with her soon after April, 1976 i.e. when the child was born to her at the place of her parents. He submits that the husband was not anxious to have the company of the wife. He was anxious to put an end to the marriage by divorce. He sought restitution of conjugal rights so that decree for restitution of conjugal rights could pave the way for divorce. He further submits that the husband has disclosed no reason why the wife would stay away from him if he was willing to keep her with him in the matrimonial home. He submits that every married girl knows that after marriage, it is the husband's home which is her home and she can only be a guest at her parents' home and that too for a few days. If she is putting up with her parents, it is because of compelling circumstances that she is not being owned by him.

6. It is not believable that the husband has always been ready and willing to keep the wife with him and it is the wife who spurned this effort on the part of the husband. Satya Devi (wife) stated that she stayed and cohabited with her husband only for 5-6 months. Thereafter, she became pregnant, she went to her parents for delivery. After delivery, she was never taken to the matrimonial home. Her father made effort to rehabilitate her into the matrimonial home but to no effect. Her husband wanted divorce. She stated that she never put forth this condition that she would stay and cohabit with him provided he puts up residence separate from his parents, she never put forth this condition that she could stay and cohabit with him if he sets up some shop/business at Malerkotla.

7. Learned Counsel for the husband submits that it is the wife who has withdrawn from the society of the husband without any reasonable cause or excuse. It is she who has become altogether oblivious of her duty as a married woman. She is not at all willing to stay and cohabit with the husband. She was neither interested in re-marriage nor in divorce. Learned Counsel, for the respondent submits that she is interested only in stalemate.

8. It appears that the husband was not anxious to have the wife back. Were he anxious to have the wife back, he would have sought restitution of conjugal rights with her after April 1, 1976. He sought restitution of conjugal rights in December, 1983. There is thus inordinate delay in the filing of this petition for restitution of conjugal rights by the husband. In my opinion, the grant of decree for restitution of conjugal rights in favour of the husband by the Additional Senior Sub-Judge, Barnala was misconceived. If the decree for restitution of conjugal rights remains, that would only pave the way for divorce. Why should they be stamped with being divorcees at this stage. They were married 27 years ago. Were the husband anxious to have her back, he would have called upon her to come back to the matrimonial home after he had obtained this decree in 1986.

9. For the reasons given above, this appeal is allowed. In consequence, petition for restitution of conjugal rights filed by the husband against the wife under Section 9 of the Hindu Marriage Act is dismissed.

10. No order as to costs.

Appeal allowed.