Shanti Devi vs Ramesh Chandra Roukar And Ors.

on 15 September, 1967

Patna High Court

Shanti Devi vs Ramesh Chandra Roukar And Ors. on 15 September, 1967
Equivalent citations: AIR 1969 Pat 27
Author: H Mahapatra
Bench: H Mahapatra
JUDGMENT H. Mahapatra, J.
1. This appeal arises out of a proceeding under Section 9 of the Hindu Marriage Act, 1955 (25 of
1955), in which the husband made an application for restitution of conjugal rights on the ground
that his wife who is appellant here, had without reasonable excuse withdrawn from his society. In
defence the appellant alleged cruelty, desertion by and in vitality of the husband. The Court below
on consideration of the evidence allowed a decree for restitution of conjugal rights in favour of the
husband. The present appeal is directed against that
2. Apart from assailing the findings as given by the Court below, learned counsel urged two other
points. He contended that according to the respondents' case the appellant had left his society in
1955 and lived since then with her parents. The proceeding under Section 9 was initiated by the
husband in 1964. For a period of about ten years no step had been taken by the husband for
restitution of conjugal rights. This aspect has not been taken into account by the court below and
according to learned counsel the decree for restitution of conjugal rights, as passed, has been
vitiated.
3. Section 23(1)(d) of the Hindu Marriage Act states "In any proceeding under this Act, whether
defended or not, if the court is satisfied that there has not been any unnecessary or improper delay
in instituting the proceeding, then, and in such a case, but not otherwise, the court shall decree such
relief accordingly." It was thus incumbent upon the court below to be satisfied that the long delay of
about ten years as suffered by the husband before coming to the court had been substantially
explained or was otherwise justified. On a perusal of the entire judgment I do not see that this aspect
of the case had at all come to the mind of the court. In the plaint itself the husband had stated that
the wife had gone away at the instance of her parents in 1955 and under their influence she was
staving with them all the time. This being the admitted position it was necessary for the husband to
explain the inordinate delay before coming to the court for redress. In that view alone the judgment
cannot be sustained.
4. Another point contended was that since the decree for restitution of conjugal rights was passed on
the 9th August 1965 no step had been taken by the husband to give effect to that, although more,
than two years by now has elapsed. This fact will provide, justification for her to obtain the divorce.
Section 13(1) of: the Act lays down "Either party to a marriage, whether solemnized before or; after
the commencement of this Act, may also present a petition for the dissolution of the marriage by a
decree of divorce on the ground (ii) that there has been no restitution of conjugal rights as between
the parties to the marriage for a period of two years or upwards after the passing of a decree for
restitution of conjugal rights in a proceeding to which they were parties" Clearly enough, the wife is
now entitled to ask for divorce and the judgment for restitution of conjugal rights as passed by the
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Shanti Devi vs Ramesh Chandra Roukar And Ors. on 15 September, 1967

court below will become ineffective, when she does so. In that view of the matter I am not inclined to
sustain the judgment.
5. Thirdly, the evidence as given by the parties before the court below, I am afraid, have not been
properly assessed, inasmuch as the most important witness, namely appellant (P. W. 8) was not
seriously considered on the ground that she was an interested witness. Who else other than the
accused party in such a case will be more competent to speak about the relevant facts? Her parents
were equally interested, no doubt, but all the same were entitled to a proper consideration by the
court on their evidence. Two witnesses were only examined on behalf of the husband. The husband
was equally an interested person. If his evidence is weighed in the same scale as was applied by the
court below to the evidence of wife, then there was almost no support for the appellant's case. No
doubt, the plaintiff produced six money order acknowledgment forms showing that he had sent
money for some months to the wife. Post cards written by his mother-in-law were also exhibited.
But all those incidents were of a time just before the proceeding of the suit. There is much force in
the contention advanced by the wife that those things were brought into existence for the purpose of
leading support to the plaintiff's case, when he decided to go to the court of law.
6. For all these reasons given above I think that the judgment for restitution of conjugal rights
cannot be upheld, and, is, therefore set aside; the appeal is allowed.
As there is no appearance for the other side there will be no order for costs.

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