S.C. Agarwal, J. - (1.) THIS appeal filed by the appellant Smt. Kanta Choudhary arises out of a petition for restitution of conjugal rights filed by the appellant again the respondent Rajendra Choudhary The said petition has been dismissed by the District Judge, Jodhpur by his judgment dated September 23, 1981
(2.) THE appellant and the respondent were married at Jodhpur on November 7, 1976 according to the Hindu rites. A daughter was born to the appellant on August . 1977. On May 27, 1978 the appellant left the respondent's house and started living with her parents. On June 26, 1978 the appellant filed the petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act (hereinafter referred to as the Act) against the respondent In the said petition the case of the appellant was that after her marriage appellant was ill treated by the parents and the elder brother of the respondent for the reason that the parents of the appellant had not given sufficient dowry and had given insufficient presents on the occasion of the birth of the daughter of the appellant and that the respondent also sided with his parents and his elder brother and started maltreating the appellant with a view to extract money and goods from the parents of the appellant The appellant further submitted that on May 27, 1971 the respondent was forced to go her parents' house and that 5 -6 days prior to the appellant's having the respondents' house on May 27, 1978 the appellant was kept confined in a room during which period the respondent and his parents and elder brother kept pressing appellant to put her signatures on a blank paper an 1 a stamp paper for the purpose of preparing a false document and the appellant was denied food as well as water and was also threatened with assault that as a result of the aforesaid treatment meted to her the appellant put her signatures on the blank stamp paper as well as other blank papers & the document that has been prepared on the said stamp paper is void and not binding on the appellant In her petition the appellant also seated that the respondent had forced the appellant to go to her parents house because he wants to marry again & that there was no reasonable cause for the respondent living separately from the appellant. The appellant has also state that respondent is a man of bad character & has illicit relations with other women and is involved with the nurses in hospital and indulges in improper acts with them. The appellant has asserted that she wants to live with the respondent and is prepared to discharge her marital obligations as a wife and that the respondent should also discharge his marital obligations and should not side with his parents in their demand for dowry and should live separately from his parents. In the petition the appellant prayed that a decree for restitution of conjugal rights be passed in favour of the appellant against the respondent. The said petition was contested by the respondent. In his written statement dated August 14, 1978. the respondent pleaded that both the parties belong to the Jats community and among Jats there exists, since long,, the custom of "chhutapa" (divorce by consent) In the said reply it has been denied that the parents of the respondent and his elder brother had maltreated the appellant on account of her having brought insufficient dowry or for any other reason and, on the other hand, it has been asserted that the appellant, under the influence of her parents, was misbehaving with the respondent and members of his family. In the said reply it was asserted that Kanwerlal, the father of the appellant, had made a false complaint against Mangilal, the father of the respondent, and Omji, the elder brother of the respondent, on November 29, 1977 before the Additional Munsif and Judicial Magistrate No. 2, Jodhpur, wherein it was stated that on November 29, 1977 at about 12.00 P.M. the appellant's father Kanwar Lal, had gone to the house of the respondent and that Mangi Lal and Omji met him there & did not allow Kanwar Lal and Omji to meet the appellant and also extended the threat that if he or any person of his family tried to meet the appellant her ear and nose would be cut and that in the said report it was also stated that Kanwar Lal was assaulted and forcibly turned out of the house by the said Mangilal and Omji and that the appellant was kept confined in a room and she was crying loudly. In his written statement the respondent stated that the aforesaid complaint of Kanwar Lal was sent by the Additional Munsif and Judicial Magistrate for investigation under Section 156(3) Cr. P.C. to the S.H.O. Police Station Udaimandir. and that the S.H.O. Police Station Udaimandir after registering said complaint, obtained a search warrant and went to the house of respondent and recorded the statement of the appellant and from the aforesaid statement made by the appellant it was found that the complaint made by Kanwarlal, the father of the appellant was totally false and that the appellant had not beers assaulted by the respondents relatives and that she was living comfortably in the respondents house and therefore the said complaint of appellant's father was dismissed and that as a result the father of the appellant has become very angry and he and the members of the family have been batching plots against the respondents and and the members of his family and the effort of the parents of the appellant is to some how bring the appellant to their house so that the respondent & members of his family are put to trouble and the appellant's father may take the revenge for his insult. In the said reply the respondent also stated that the appellant's parents also made on effort to instigate the appellant through anonymous letters and that in view of the constant harassmant that was caused to him by the appellant and her parents the respondent asked appellant and her relatives as to what they actually wanted thereupon the appellant and her parents stated that the appellant wants to divorce the respondent and thereupon the respondent divorced the appellant on May, 26, 1978 and appellant also executed a document on a stamp paper, which was duly attested by Notary Public, whereby she voluntarily terminated the marriage tie with the respondent and thereafter the appellant on her own free will went to her parents' house. In the written statement the respondent denied that the appellant was kept confined in a room for 5 -6 days prior to May 2, 1978 and that her signatures were obtained on a blank paper or stamp paper by putting pressure on her. In the said reply the respondent has denied that the respondent is a man of bad character or is availing illicit relations with any other women or is involved with the nurses in the hospital and, on the other hand, it was submitted that in view of the false allegations of adultery made by the appellant in para 7 of her petition, the appellant was not entitled to a decree for restitution of conjugal rights. In the written statement the respondent also submitted that the only purpose of filing the petition for restitution of conjugal rights was that the appellant wants to claim maintenance allowance from the respondent and that the appellant had also initiated separate proceedings for claiming maintenance allowance against the respondent in the court of Judicial Magistrate No. 4, Jodhpur. The respondent submitted that in view of the mutual agreement for divorce that has been arrived at between the parties on May 26, 1978 that matrimonial ties between the parties have been snagged and no decree for restitution of conjugal rights could be passed in favour of the appellant.
(3.) ON the basis of the aforesaid pleadings the District Judge framed four issues on December 19, 1978. Issue No. 1 was as to whether for the reasons set out in paras 5,6 and 9 of the petition, the respondent has, without any reasonable cause expelled the appellant from his house and has left her since May 27, 1978 and that appellant is entitled to a decree for restitution of conjugal rights. Issue No 2 was whether amongst the caste of the parties, there has been in existence since long the custom of giving 'chhutapa' (divorce). Issue No. 3 was as to whether the appellant has by her own will terminated the marriage by taking 'Chhutapa' (divorce) in accordance with the custom prevalent in the caste, on May 26, 1978 and has, for that purpose, put her signatures on the divorce deed and that the petition for restitution of conjugal rights was not maintainable. Issue No. 4 was with regard to the relief.;