LODHA, J. - (1.) THESE two appeals are from the judgment and order dated 2. 6. 2006 passed by the Family Court No. 2, Jaipur and, therefore, these appeals were heard together and are being disposed of by this common judgment.
(2.) GOVIND Gupta and Santosh Gupta (here-in-after to be referred as `husband' and `wife' respectively or by their first name) married on 4. 12. 1985 at Gangapur city in accord with Hindu customs and rites. Out of the wedlock, the daughter (Pragati) was born in the year 1986 and the son (Prateek) was born in the year 1994. The marriage between the parties did not get along well despite the birth of two children and that both of them have been living separately for many years is an admitted position. On 12. 6. 2002, the husband filed a petition under Section 13 of the Hindu Marriage Act, 1955 seeking dissolution of marriage and divorce on the grounds of mental cruelty and desertion. In his petition, the husband set out the acts of the wife which according to him caused mental cruelty. He alleged that after three days of the marriage, the wife left for her parent's house. After about a month, his father went to Gangapur City to bring Santosh to their ancestral village Danda but her father declined to sent her for Danda. Then after about 15 days, Govind went to her parent's house to bring her. At that time, he was told by her father that Santosh shall not be sent to village danda as there were no facilities. Her father said that if Santosh is taken to Jaipur, she would be sent. He brought Santosh to Jaipur. For about 10-15 days, everything went on well but thereafter there was a lot of change in Santosh behaviour. Govind alleged that after he left for office, Santosh would go to the places of her liking; she would come in the evening and sometimes late in the night. This conduct of her, according to the husband, was subject matter of talks amongst neighbours. When he would return from the office, Santosh would not make tea or food. He tried to reason with Santosh not to move out of the house unnecessarily and prepare breakfast and food and do the house hold chores on time so that after dinner they could move out. According to husband, the tentative date of delivery of their first child was 21. 11. 1986. At that time he wanted his sister or aunt to come to Jaipur for the purpose of delivery. However, Santosh threatened that if he called his sister or aunt, she would commit suicide. He, therefore, did not call his sister or aunt at the time of her first delivery. Even after the birth of the girl child, the things did not improve; she did not treat the infant properly nor would she feed her on time. In the year 1987, he went to Hyderabad for computer training. At that time, Santosh forced him to take her also to Hyderabad. He had to tell her that in the training, she cannot be taken since the lodging and boarding has been arranged by the organisers. On this Santosh became angry. When he returned from Hyderabad, he found his house locked. His neighbours informed him that Santosh left the house immediately after he left for Hyderabad and she only came in the morning. He waited for about 1-2 hours and then Santosh came. She told him that she had gone to watch movie. Because of her care- free attitude, he was hurt. In the year 1988 at the time of Deepawali, his mother fell ill and both of them were called to visit her at Village Danda. He asked Santosh to accompany him to village Danda to meet his mother. Santosh got angry and abused him and refused to go to Danda. He, therefore, had to go to village Danda alone. Govind alleged that in the month of August, 1991, Santosh went to her sister's place in Karauli and from there ran away with somebody. He lodged a missing report at the Police Station Karauli. The police then searched her and brought her to his house. This act of the wife made difficult for him to move out of the house and affected his and his family's reputation. Because of the bad habits of the wife, the husband alleged that he was required to change his residential house frequently. Her behaviour with his mother, when they were staying at Shastri Nagar in a rented house, was highly objectionable. She would not prepare meals nor would she talk to his mother. During this time, he was required to make food for his mother and father. Her behaviour with his friends was also not proper. She would not even offer water to his friends. Every time he had to offer explanation to his friends that his wife's health was not good. He was required to make tea and breakfast for visitors. The husband alleged that the wife would always quarrel with him whenever he sent amount for the maintenance of his own parents and unemployed younger brother. In the year 1995-96, Santosh suffered from T. B. M. She was admitted in Neurology Ward of SMS Hospital, Jaipur. At that time he wanted to call his sister or aunt but she flatly refused and, therefore, for about 20 days he alone was required to attend her in the hospital. The husband alleged that he went on tolerating the matrimonial misconduct of the wife with the hope that by passage of time her behaviour would improve. He was also concerned about his children and, therefore, went on tolerating objectionable behaviour of his wife. The husband alleged that on 2. 4. 2000, the wife locked their house and went to her friend's place. He waited till late night but Santosh did not return and then he was compelled to go his friend's place. In the next morning when he came to his house, the house was still locked and Santosh was not there. On 3. 4. 2000, she got a call from her. She threatened that if he ever returned to the house, he will have to face dire consequences. He was thus, compelled to take shelter in his friend's house and thereafter he took rented house and after some time, he got the official accommodation. He alleged that the wife has forcibly dispossessed him on 2. 4. 2000 from the house built by him and his ownership and deprived him of matrimonial company. The husband alleged that he tried many times to return to his house but the wife refused his entry in the house and threatened that if he ever tried to enter into the house, his hands and legs would be broken. The husband, thus, alleged that since 2. 4. 2000 without any reasonable cause, the wife has refused cohabitation and has deserted him. The husband alleged that there was no likelihood of any reconciliation in view of the wife's determination to snap matrimonial relationship. In her reply, the wife denied the allegations made by the husband in the matrimonial petition filed under Section 13 of the Hindu Marriage Act. She averred that at the time of engagement ceremony, a cash amount of Rs. 1 lac was given with few gold items. In the marriage, also Rs. 75,000/- was given in cash along with house hold items, furniture and other items. She denied that her father ever refused to send her to her husband's place. The husband came to her father's house after about two months of the marriage and took her to Jaipur and she lived with him. She denied that she was moving freely in Jaipur. Rather, she stated that since she hailed from small village, no sooner the husband left for his office, she would bolt the house from inside and open it only on his return. She averred that she always prepared tea, fresh breakfast and food on husband's return from office. She stated that as a matter of fact at the time of her first delivery, she asked her husband to call his mother but he flatly refused. She denied having insisted to accompany her husband during his computer training to Hyderabad. She asserted that when the husband returned from Hyderabad, she was at the house and prepared tea and breakfast for him. According to her, the husband suffered from some complex and he would not even permit her to talk to other ladies. As and when she talked to some body, he would get annoyed and abuse her. She averred that in the year 1988, when her mother-in-law came to Jaipur, she took her full care. She admitted that she went to her sister's place at Karauli, but denied that she ran away with somebody. According to her after staying at her sister's place for one week, she went to her parent's house at Gangapur city. She stated that the husband frequently changed the house as the landlords were not satisfied with his behaviour. In so far as rented house at Shastri Nagar was concerned, the said house was vacated because the parties built their own house. Though she admitted that the plot of land at Saraswati Nagar, Malviya Nagar, Jaipur was purchased by the husband but insofar as construction of the house was concerned, she asserted that it was done by the funds contributed by both of them. The wife asserted that as a matter of fact, for this purpose, she had to sell her jewelery. According to the wife, the husband would come late in the night from the office and at that odd hour if he was accompanied by his friends, it was not possible to entertain them. Otherwise, on holidays etc. whenever the husband's relatives or friends visited their house, she took full care of them. She stated that the dispute between the parties arose because the husband would send part of his salary to his parents and younger brother for their maintenance and also his spending money on some lady friend. As a result thereof, she became ill having body-ache, head-ache etc. As regards her treatment in the SMS Hospital in the year 1995-96, she stated that she was in coma and, therefore, it was wrong to alleged that she did not permit her husband to call his sister or aunt. The wife stated in her reply that the behaviour of the husband towards children was not good. He would be harsh towards them. She denied that on 2. 4. 2000, she went to her friend's place after locking the house. She alleged that on 2. 4. 2000, the husband was at some other lady's place in Brahmpuri. She denied having asker her husband to get out of the house. She stated that she never objected to the husband staying in their house as he has equal share and even today she has no objection if he comes and stays with her. The wife also stated that on 2. 4. 2000, it was the husband who did not come to the house and that made her worried. Next day, she tried to find out from her husband's friends and co-workers and came to know that he was in the office until evening. At about 11. 00 a. m. , on 3. 4. 2000, she phoned the husband in his office; spoke to him and requested him to come to the house. However, he stated that he wanted divorce and, therefore, he would stay away from her for minimum two years and then file the petition for divorce on the ground of desertion. The wife denied having given any threat to the husband either herself or through others. She averred that since husband was desirous of marrying with his lady friend, since September, 2000 he left the matrimonial house on his own. According to her, the husband cohabitated with her up to 2. 9. 2000 and, therefore, it was incorrect to say that the parties have been living separately for more than two years. She refuted that the ground of mental cruelty or desertion was made out. She submitted that the petition for divorce and dissolution of marriage filed by the husband was liable to be dismissed. After filing the reply on 6. 7. 2002 in opposition to the matrimonial petition of the husband, the wife on 26. 11. 2002 filed a petition before the Family Court for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955. She prayed that her husband be directed to keep her as his wife and provide her all facilities and re-establish the matrimonial relationship.
(3.) THE husband contested the petition filed by the wife for restitution of conjugal rights and broadly on the same facts on which he filed the petition for divorce and dissolution of marriage, set up the defence that because of the conduct of the wife, his life has become in-secure and unsafe and it would not be possible for them to live together. He, thus, denied that the wife was entitled to restitution of conjugal rights. THE husband stated that the application for restitution of conjugal rights has been made by the wife only to counter petition for divorce and dissolution of marriage filed by him. On the basis of the pleadings of the parties, in petition filed by the husband for divorce and dissolution of marriage, the Family Court framed the following two issues, namely: (i) Whether the wife for the acts averred in the petition caused physical and mental cruelty to the husband? (ii) Whether the wife has deserted the husband and refused to discharge matrimonial obligation continuously for a period of two years without reasonable cause? In the petition filed by the wife for restitution of conjugal rights, the following issues were framed: (i) Whether the husband day in and day out abused and beat her and behaved with her indecently and cruelty due to which the wife was compelled to apply for maintenance in which by consent maintenance of Rs. 2,200/- per month was awarded but the husband became angry due to the said order and deserted her? (ii) Whether the wife deliberately dispossessed the husband from their house on 2. 4. 2000 and despite the efforts of the husband, she has not permitted him to enter the house? ;