Court No. - 5
Case :- FIRST APPEAL No. - 519 of 2018
Appellant :- Ashish Vishoni
Respondent :- Mahima Raman Sharma
Counsel for Appellant :- Anand Kumar Singh
Hon'ble Pradeep Kumar Singh Baghel,J. Hon'ble Dinesh Kumar Singh,J.
This appeal under Section 19 of the Family Court Act has been preferred by the appellant-husband aggrieved by the order of the Judge Family Court/ Additional District & Sessions Judge, Moradabad whereby he has rejected the petition under Section 9 of Hindu Marriage Act moved by the appellant for restitution of conjugal rights.
The petitioner was married with the sole respondent according to Hindu rites and customs on 2.2.2015. He moved a petition under Section 9 on Hindu Marriage Act in October, 2015 for restitution of conjugal rights on the ground that the sole respondent without reasonable excuse has withdrawn herself from his company. In his petition, it is stated that his wife is a very short tempered lady who, after some time of marriage, started misbehaving with his family members and when, in this regard, complaint was made to her family members, she became more aggressive and stopped doing the daily chorus in the house. She refused to change her behaviour. On 1.7.2015 when the appellant-husband had gone out of station and his father was also on his duty, she along with her father and brother left her matrimonial house with jewellery and some valuable items. It is further stated that when the appellant went to her home on 11.7.2015, 20.7.2015 and 28.7.2015 to bring her back but she declined to return the appellant's house. It is averred in the petition on 28.8.2015, the father-in-law and brother-in-law of the appellant came to his house and threatened him of the serious consequences.
It is stated that for the first time, cause of action for filing suit arose on 1.1.2015, when respondent-wife has left her matrimonial house with jewellery, clothe and cash in absence of appellant-husband and refused to return to husband's house. It is stated that the appellant is ready to live with respondent.
In support of his case, the appellant has filed an affidavit of his mother Meena Vishnoi. In her statement, she has made allegation regarding misbehaviour of the sole respondent. It is also stated that on 1.7.2015 , the respondent along with her father and brother left her matrimonial house. She has stated that on 11-12.7.2016 father and brother of the respondent came to house at night and with an intention to kill, they fired shot at the appellant who, on being hit by shot, fell on the ground unconsciously. Regarding this incident, an F.I.R. was lodged with Police Station Civil Lines under Section 307/452 I.P.C.
The respondent-wife filed reply and denied the facts mentioned in the appellant's petition. She has stated that after the marriage, she was badly treated by the husband and his family members in respect of the demand of dowry. She has also alleged that the husband has tried to commit unnatural sex with her. She has also stated that her life is in danger in the house of the husband as she has apprehension that they will kill her. As such, she has expressed her unwillingness to go with appellant-husband.
The Family Court considering the evidence on record held that the parties have filed several cases against each other. The sole respondent has filed a case under Section 498A, 377, 406, 323, 506 I.P.C. and ¾ D.P.Act at Mahila Police Station. The said criminal case is pending in the court of Chief Judicial Magistrate, Bareilly. In addition to the above, the wife has also filed a case in the court of ACJM-VII, Bareilly under the provision of the Domestic Violence Act and she has also filed an application under Section 125 Cr.P.C. for the maintenance. The Family Court has referred the criminal case filed by the appellant against his father-in-law and brother-in-law under Section 307 and 452 I.P.C. In view of the above facts, the Family court rejected the petition of the appellant moved for restitution of conjugal rights.
We have heard learned counsel for the parties and perused the record.
Learned counsel for the appellant submits that in spite of bad behaviour of the sole respondent, the appellant is still ready to live with her. It is further submitted that the respondent has left the appellant without any reason and in spite of request made by him, she did not come back with him from her house. Learned counsel for the appellant has further submitted that the Family Court has failed to consider that there is still possibility of reconciliation between the parties. No other statement has been made.
Concededly, the appellant has filed an F.I.R. against his brother- in-law and father-in-law under Section 307 and 452 I.P.C. as they have tried to kill him and he was injured in gun fire. In addition to the said criminal case lodged by him, the respondent-wife has also filed several cases details of which have been made in the earlier part of this Judgment. The sole respondent in her affidavit has stated that as she does not feel safe to live with her husband, she is not prepared to live in her matrimonial home. She has apprehension of physical assault by her husband and his family members in respect of the demand of dowry. The police after investigation has filed charge sheet under Section 498A, 323, 506, 406 I.P.C. and ¾ D.P. Act against the appellant and his family members. These litigations and affidavit of respondent-wife clearly demonstrate that relationship between the husband and wife at this stage has deteriorated to such an extent that reconciliation is not possible.
From the pleadings, we find that the appellant has taken contradictory stand. On the one hand, he has made complaint regarding the misbehaviour of his wife and her family members and still he wants to live with her. On the other hand, her mother states in her affidavit that her son (appellant) has received gun-shot injury in which he became unconscious and the appellant filed an FIR in this regard.
Having regard to the evidence, which are on record, we do not find any error in the finding recorded by the Family Court. Hence, we are of the considered opinion that the appeal lacks merits and is liable to be dismissed.
Accordingly, present appeal is dismissed. Order Date :- 30.7.2018 Ram Murti