Court No. - 44
Case :- FIRST APPEAL No. - 785 of 2021 Appellant :- Ramesh Chand Vishwakarma Respondent :- Smt Deepa Sharma Counsel for Appellant :- Kamlesh Kumar Tiwari
Hon'ble Mrs. Sunita Agarwal,J. Hon'ble Krishan Pahal,J.
Heard learned counsel for the appellant and perused the record.
The present appeal is directed against the judgment and order dated 8.7.2021 passed on a petition under Section 9 of the Hindu Marriage Act filed by the appellant-husband.
We may note, at the outset, that the said petition had been rejected ex-parte. The ground to seek a decree under Section 9 of the Hindu Marriage Act as narrated in the petition itself was that the respondent-wife had left her matrimonial home without any reasonable excuse and started living in District Gorakhpur wherein her parents are residing. Whereas the appellant is living in Delhi and has also purchased a house in Noida.
We may further note that a petition under Section 9 of the Hindu Marriage Act was filed at Mirzapur on the premise that the petitioner is a permanent resident of District Mirzapur. Apart from the bald assertions in the petition, no documentary evidence has been filed by the appellant to substantiate his assertions of doing a job at Delhi and purchase of the house at Noida for the residence of his wife.
Having noticed the assertions in the petition, the Family Court had posed a question to itself as to whether there was sufficient material on record to opine that the wife had refused to discharge her matrimonial obligations without any reasonable excuse. While answering the said question, it has been noticed by the Family Court that in the petition as also in the affidavit accompanying the same, the petitioner/appellant-husband had admitted that his wife is a teacher in a school run by the Basic Shiksha Parishad and is posted in District Gorakhpur. The only child of the couple is also studying in District Gorakhpur. Being a Government employee, it is not possible for the wife to leave her permanent job to live with her husband in Delhi or at Noida that too when the appellant-husband has no job security and he is doing a private job as per his own assertion.
The finding of the Family Court is that the wife has not left her matrimonial home or refused to discharge her matrimonial obligations rather she is travelling from Gorakhpur to Delhi on occasions and stayed and spent time with her husband.
As the necessary ingredient of award of decree under Section 9 of the Hindu Marriage Act has not been found in the facts and circumstances of the case, the Family Court has dismissed the petition.
All these findings of fact returned by the Family Court could not be assailed by the learned counsel for the appellant. Only submission of the appellant is that the wife has not even moved an application to seek transfer from Gorakhpur to Delhi wherein the husband is working. This submission is found misconceived as the post of the teacher in a basic school is ordinarily not transferable. The transfer on certain conditions in special circumstances is granted that too it cannot be to Delhi. No explanation could be given by the husband as to why he has not looked for an alternative employment/job at Gorakhpur to stay with his wife and daughter to discharge his matrimonial obligations. Matrimonial obligations are equal responsibility for both husband and wife and the appellant cannot successfully argue that only the wife is under obligation to leave her permanent job or to seek transfer necessarily.
For the above discussion, we do not find any good ground to entertain the appeal.
The appeal is dismissed at the admission stage itself.
Order Date :- 26.10.2021 Brijesh