THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN And THE HON’BLE SRI JUSTICE M.SATYANARAYANA MURTHY CIVIL MISCELLANEOUS APPEAL No.3940 of 2003 JUDGMENT: (per Hon’ble Sri Justice Ramesh Ranganathan) This appeal is preferred by the unsuccessful petitioner in H.M.O.P.No.42 of 2001 before the II Additional Senior Civil Judge, Kakinada. The appellant herein filed the petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 (for brevity, ‘the Act’). Parties shall, hereinafter, be referred to as they are arrayed in the O.P.
In the petition, filed by her before the Court below, the petitioner stated that the marriage between her and the respondent took place on 07.07.1988; she was treated well for a period of one year; she was, thereafter, subjected to ill-treatment by the respondent who demanded more dowry; inspite of her pleas that her parents were unable to give dowry, the respondent continued to ill-treat her; the respondent contracted a second marriage; she, therefore, filed a complaint under Sections 498-A and 494 IPC; the respondent filed a petition for divorce on the file of the Senior Civil Judge, Pithapuram; her attempts at counselling were in vain; O.P.No.11 of 1994 filed by the respondent earlier, under Section 9 of the Act, was dismissed by the Senior Civil Judge, Pithapuram; and, despite the respondent ill- treating her, she is anxious to have her conjugal rights restored.
In the counter, filed by him in the O.P., the respondent denied the allegation of his having ill-treated the petitioner. He contended that it was she who deserted him as she had no intention of leading a conjugal life with him; the petitioner was a troublesome woman and was seeking to live a luxurious and lavish life from the very beginning; she was arrogant and never cared for the respondent or his mother;
she lodged a criminal complaint against him and his mother in the year 1990; in January, 1994 she deserted him; he got a legal notice issued asking her to join him; she had then filed a maintenance case before the III Additional Judicial Magistrate of First Class, Kakinada; though he expressed his readiness to live with her, she had refused the offer; in O.P.No.11 of 1994 both he and his mother had expressed their readiness to give an undertaking to ensure her safety; despite the undertaking, she had refused to join him; and she had filed a false case against him, under Sections 494 and 498-A IPC, in Cr.No.236 of 2000.
In the order under appeal, the Court below held that the respondent was facing a criminal case filed by the petitioner; the divorce petition filed by him was pending before the Senior Civil Judge, Pithapuram; the respondent had contended that the relationship between him and the petitioner could not be restored because of her acts of filing criminal cases against him, and as she had previously opposed the petition for restitution of conjugal rights; a suggestion was made to the respondent, when he was examined as R.W.1, by the counsel for the petitioner that, if he joined the petitioner, she was ready to withdraw all police cases; the petitioner appeared to be using the police cases as a handle to bring the respondent to her terms; she had opposed restitution of conjugal rights in the year 1994, on the ground that she feared for her life; there was no qualitative change in the attitude of the respondent thereafter; the petitioner had relied upon an undertaking, signed by the respondent before the Revenue Divisional Officer, Kakinada in August, 2000, that he agreed to live with her; the respondent had contended that he had submitted the undertaking because of fear of prosecution; the Revenue Divisional Officer had no authority to obtain such an undertaking; it was in the interests of either spouse to be granted relief as the marital life between them had finally broken down; the parties were litigating since 1994; the petitioner had filed a maintenance case also; in these circumstances, no useful purpose would be served if restitution of conjugal rights was ordered; and the attempt of the petitioner, to seek restitution of conjugal rights, did not appear to be bonafide.
Before us Sri E.V.V.S.Ravikumar, learned counsel for the appellant, would submit that O.P.No.22 of 2000, filed by the respondent seeking divorce, was dismissed by the Court below; the mere fact that the petitioner had earlier resisted O.P.No.11 of 1994, filed by the respondent for restitution of conjugal rights, was because she feared her safety if she lived with the respondent; she had, thereafter, agreed to live with him; the respondent had also agreed to do so, and had given an undertaking in this regard to the Revenue Divisional Officer, Kakinada; the mere fact that she had agreed to withdraw the criminal cases filed by her against the petitioner, if he agreed to take her back, did not mean that she was using it as a leverage to seek restitution of conjugal rights.
On the other hand Sri M.S.R.Subrahmanyam, learned counsel for the respondent, would submit that no useful purpose would now be served in setting aside the order of the Court below, and in granting a decree of restitution of conjugal rights, as the parties have been living apart for more than two decades; and he is unaware whether or not the O.P.No.22 of 2000, filed by the respondent seeking divorce, was dismissed.
The two grounds on which the Court below dismissed the O.P. are: 1) the petitioner had resisted O.P.No.11 of 1994 filed by the respondent seeking restitution of conjugal rights; and 2) a suggestion was put to the respondent, by the petitioner’s counsel, that she was willing to withdraw all police cases if he agreed to take her back.
The mere fact that the petitioner had filed criminal cases, under Sections 498-A and 494 IPC, would not necessitate the conclusion that she is not willing to join the respondent. While her earlier refusal to join the respondent, pursuant to the petition filed by him for restitution of conjugal rights in O.P.No.11 of 1994, was on the ground that she feared for her safety, the fact remains that both in the said O.P., and thereafter, the respondent had given an undertaking to ensure the safety of the petitioner. The subsequent undertaking, given by the respondent, may well have emboldened the petitioner to live with him without fear of her physical safety. Her willingness to withdraw the police cases is also for the reason that she intended to restore her conjugal relationship with the respondent. The Court below erred in rejecting the petitioner’s prayer for restitution of conjugal rights on the aforesaid grounds. No other ground has been urged even before us by Sri M.S.R.Subrahmanyam, learned counsel for the respondent, as to why the petitioner should not be granted the relief sought for in the O.P. The order of the Court below is accordingly set aside, and the appeal is allowed granting the petitioner the relief of restitution of conjugal rights.
In the result, the Civil Miscellaneous Appeal is allowed. However, in the circumstances, without costs. The miscellaneous petitions pending, if any, shall stand closed.
RAMESH RANGANATHAN, J M.SATYANARAYANA MURTHY, J 20th August, 2014.
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