w w w . L a w y e r S e r v i c e s . i n



Sima Saha v/s Prabir Kumar Saha


Company & Directors' Information:- SAHA (INDIA) PRIVATE LIMITED [Strike Off] CIN = U67120KA1991PTC012267

Company & Directors' Information:- C C SAHA LTD [Active] CIN = U36920WB1933PLC007695

Company & Directors' Information:- B N SAHA CO PVT LTD [Strike Off] CIN = U12000WB1938PTC009498

    F.A. No. 07 of 2016

    Decided On, 19 March 2018

    At, High Court of Tripura

    By, THE HONOURABLE CHIEF JUSTICE MR. AJAY RASTOGI & THE HONOURABLE MR. JUSTICE S. TALAPATRA

    For the Appellant: S. Mahajan, Advocate. For the Respondent: A. Basak, Advocate.



Judgment Text

Ajay Rastogi, C.J.

The present appeal has been preferred by the appellant-wife under section 19(1) of the Family Court's Act, 1984 against the judgment dated 22.07.2016 granting decree of Restitution of Conjugal Rights in favour of the respondent-husband on a petition filed by him under section 9 of the Hindu Marriage Act, 1955.

2. The in disputed facts in brief, which may be relevant for the present purpose and manifest on the record are that the marriage of the appellant with the respondent was solemnized on 11.05.1995 according to the Hindu Rites and Customs and from this wedlock they were blessed with a male child on 13.02.1999, who at the time of filing the application, was 17 years old but unfortunately, after one and a half year of his birth it was diagnosed that he is suffering from thalasemia and is under continuous medical treatment and is presently in custody with the respondent-husband/father.

3. That apart from the medical treatment of his son he has an old aged ailing mother, who too is dependent upon him. At the same time, the wife is also suffering with medical ailment and as advised by the doctors the respondent-husband extended medical assistance to the appellant-wife and son but gradually it started deteriorating and because of ailing son blood transformation takes place at least three times in two months and is also very painful.

4. Respondent had certain complaints with the appellant-wife that she did not take care of their son and that started deteriorating health and mental conditions gradually of the respondent-husband and his son and without any sufficient justification one day the wife left her matrimonial home on 25.09.2009 although her parents assured that they will send her back to matrimonial home but the fact is that she never turned up and while residing at her parents' home she filed a criminal case against him under section 498-A IPC and also filed application for maintenance under section 125 of Cr.P.C., 1973 But those cases are amicably settled but some bitterness arose in their marital relations. But the root cause was that the wife for good reasons is not interested to take care of their ailing son and his old mother and left her matrimonial home on 30.03.2015 and this could not be considered to be a reasonable excuse to withdraw her and refusal to share the matrimonial life.

5. In support of defence, the respondent-husband appeared as P.W.1 and the appellant-wife also appeared as D.W.1 and also one of her witness Narayan Chandra Saha as D.W.2. The respondent-husband in his deposition as P.W.1 deposed the facts in seriatim as being alleged in his application filed under section 9 of the Hindu Marriage Act, 1955 for Restitution of Conjugal Rights. At the same time, the wife also deposed as D.W.1 and in examination-in-chief, she has narrated the same facts as stated in her written statement. In her cross-examination, she deposed that all the time she is eager to restore conjugal life and ready to restore her matrimonial house but having an apprehension that she may not be safe in the house of her husband.

6. But there is no tangible material placed on record by which even an iota of inference could be drawn that there was at all any ill-treatment on the part of her husband. At the same time, it came on record that she was taking care of their ailing son, his wife and there is no reason of excuse to withdraw from marital relations and to share the matrimonial life.

7. The learned Family Court granted Decree in favour of the respondent-husband for Restitution of Conjugal Rights under the impugned judgment dated 22.07.2016.

8. The main thrust of submission of counsel for the appellant is that although they have failed to maintain harmonies of matrimonial relations but as she has been threatened on number of occasions apprehending of enforcing dire consequences and that according to the appellant is a reason for which she has challenged the impugned judgment of the learned Family Court dated 22.07.2016 directing for Restitution of Conjugal Rights.

9. Counsel for the respondent has supported the judgment of the learned Family Court and submits that the pleadings including evidence has been discussed in detail by the learned Family Court and there is no manifest perversity in the finding which has been recorded under the impugned judgment which may call for interference by this court.

10. We have heard the counsel for the parties and also perused the materials on record.

11. The leading idea of Section 9 is to preserve the marriage. What the court seeks to is to enquire into the causes which have led to the rupture of the marital relations and a refusal to share the matrimonial life. If there is no reasonable excuse for living apart, the court orders the withdrawing party to return to the conjugal fold so that the consortium is not broken. The object of the restitution decree is to bring about cohabitation between the estranged parties so that they can live together in the matrimonial home in amity. The outstanding fact is that the husband and wife are living apart and leading their own separate lives. The court seeks to enquire into this separation. The inquiry into the affairs of the matrimonial life is to be confined to this one fact "Is there a just cause for the appellant to live apart and separate from the petitioning spouse?" Section 9 is a means of saving the marriage. It can be that the erring spouse comes on the right path and a broken home is rebuilt and the court is enjoined to make every endeavour to bring about reconciliation between the parties. But the court seeks to do is to enquire into the cases which have led to the rupture of the marital relations and a refusal to share the matrimonial life. If there is no reasonable excuse for living apart the court orders the withdrawing party to live together. It is the policy of the Act that the parties should live together. Living apart is the very antithesis of living together as society is the antithesis of separation. The policy it appears to be is to assist in the maintenance of marriages other than those reduced to a mere shell. This state of affairs is normally brought about by one spouse leaving the matrimonial home, so that they are no longer living under the same roof. They are living in a state of separation.

12. In the instant case, the in-disputed facts which has come on record are that after their marriage was solemnized on 11.05.1995, a male child was born from this wedlock on 13.02.1999 and after one and a half year he suddenly fallen ill and attacked a serious disease namely, thelasemia and the family life of the parties started to disturb. Apart from it, the respondent-husband has an ailing mother and he is the one who is taking care of members of the family and providing them the best medical treatment as possible and at this juncture, the appellant-wife voluntarily withdrew herself from her matrimonial home and a defence throughout goes that she left her matrimonial home finally on 31.08.2010 because the misdeeds of her husband as he is in extra marital relations but no tangible evidence was led in support of her defence. At the same time, in he

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r cross-examination, it has been stated by her that she is eager to go back to her husband's house but husband threatens her with dire consequences but there is no supporting evidence placed on record to substantiate her apprehension. 13. From the materials on record the appellant has not come out with any reasonable excuse to withdraw herself from her marital relations and to share the matrimonial life. 14. After we heard counsel for the parties and from the findings recorded by the learned Family Court under the judgment impugned, in our considered view, it is based on the cogent evidence on record and we find no perversity in the findings which may call for interference by this court. 15. Consequently, the appeal is without substance & accordingly, dismissed.
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