Sunday 15 April 2012

Restitution of conjugal rights comes only with maintenance

Bombay High Court
Shushma Manojkumar Shriwastav vs Manojkumar Shriwastav & Anr on 11 April, 2012
Bench: R. S. Dalvi

1. The Petitioner wife has challenged the order of the learned Judge, Family Court, Mumbai dated 20th September, 2010 refusing permanent maintenance to the petitioner-wife.
2. The parties had an arranged marriage. The husband claims to be a helper of a tailor. The wife claims that he has a garment shop himself.
3. The husband has sought to show that the wife has without reasonable cause left the matrimonial home and hence is not entitled to any maintenance. This is on the footing that the claim of the wife of demand for dowry is wholly dishonest and must be fully rejected. That is what the learned Jude has been impressed with.
4. Counsel on behalf of the husband drew my attention to the first reply of the wife to the notice of the husband calling her back to her matrimonial home, the FIR filed by the wife under Section 498-A of the Indian Penal Code and the petition for claiming maintenance. Counsel on (2) (1) Revn 70/12
behalf of the husband has argued that in each of these the wife has made different allegations and hence her allegations deserve rejection. He has also argued, and that has been held by the learned Judge also, that if the allegations were true the wife would have made those allegations in a complaint letter or in a criminal complaint or otherwise prior to her first reply.

5. It has been the case of the wife that at or about the time of the marriage also certain demands were made. Those demands were met. Fresh demands were made even thereafter. The demands continued constraining her to leave the matrimonial home. After which she refused to return to her matrimonial home.
6. It is endemic in our country and of which judicial notice is required to be taken, that new fresh and further demands of dowry at various times of marriage continue to be made as an abhorrent custom. These demands first made are met if they are reasonable. They cannot be continued to be made and met.
7. Under this scenario the case of the husband and the wife are required to be seen to judge whether the wife left the matrimonial home upon sufficient and just cause.
8. It is the husband's case that the wife lived with him for barely 15 days in 4 months period that the marriage survived. It is the wife's case that within months of the marriage she left her matrimonial home under constraint of demand of dowry. True it is that the wife did not send the notice of alleged complaint so soon as she left her matrimonial home. The husband called her back to the matrimonial home by his notice of demand (3) (1) Revn 70/12
dated 7th November, 2006. The wife did not desire to return to the matrimonial home in view of her contentions. Hence when the notice was received she has immediately replied on 13th November, 2006. In that first reply she has stated how the mother of the husband was not satisfied with the articles given by the parents of the wife at or about the time of the marriage. She has also stated that immediately after the marriage there were demands of dowry by way of house accommodation and a Hero Honda motor cycle. She has mentioned about the various gifts of gold and silver given at the time of marriage. She has further stated that her parents had undertaken marriage expenses and given Rs.75,000/- in cash for business purpose to the husband together with household articles.
9. In a complaint under Section 498-A of the Indian Penal Code (which is largely unreadable and illegible) the FIR contained under clause 12 also shows the demand for motor cycle and a new house. The reply to the notice and the FIR are, therefore, similar. No new case has been made out after the first reply.
10. In the petition for maintenance the wife has set out the marriage expenses. She has quantified the marriage expenses at Rs.2 lacs. She has also set out that Rs.75,000/- was given in cash as dowry. She has enumerated the gold, silver and copper articles which include utensils. These contentions are, therefore, also consistent with the reply to the demand notice dated 13.11.2006 and the FIR. The petitioner-wife, however, further states that even after these articles were given at the time of the marriage, further demands were made after the marriage. That was in a sum of Rs.1 lac from the parents of the petitioner. The petitioner states that Rs.20,000/- were given upon the assurance that the wife would not be ill- treated, but she was continued to be abused. The petition has set out the (4) (1) Revn 70/12
particulars of the domestic violence in para 10 of the petition. This is alleged to be at the influence of the parents of the husband. This shows the expansion of the demands after the earlier demand of the motor cycle and residential accommodation.
11. The argument of the counsel on behalf of the husband that inconsistent pleas have been taken is, therefore, not correct. In fact, Counsel on behalf of the husband rightly drew my attention to the most relevant parts of each of the above reply, complaint and petition of the wife.
12. These contentions would be better appreciated if the husband's own case is seen. The husband claims that he is not a tailor and he does not own a shop but is only a helper with a tailor. His position as a husband is, therefore, precarious. He claims that he earns only Rs.3000/-. It is common knowledge even the peons earn more than this today. The husband is hardly eligible to marry, to keep a wife, to make a family and even more ineligible to demand that his wife returns home when he claims to earn only Rs. 3000/- p.m. In this scenario the demand of the husband would have also to be considered. He claims that he never demanded dowry and would not demand in future. Without the wife's assistance, it is easy to see that he can hardly make ends meet for himself as also his wife much less for his future family.
13. The husband claims that he lives in a large family with his mother, father, younger brother and one unmarried sister. The husband who is present in Court instructs his counsel to state that his house is 125 sq. ft. in area. In this economic position, the husband claims and wants the Court to believe, that he never called upon his wife to procure him another (5) (1) Revn 70/12
residence. It may be mentioned that if the husband seeks to have the company of his wife and to make a family he would not only deserve but need another accommodation. He seems to make no efforts to obtain it himself and hence his wife could be the only source from where he could get that most essential need.
14. In these circumstances, the case of the wife that he made the dowry demands as alleged by her stand to reason given the endemic situation in our country for demand of dowry which drove the legislature to pass the anti dowry act 3 decades ago.
15. In this situation it is to be seen whether the refusal of the wife to live with the husband and to return to her matrimonial home would be justified. It does not require much research to conclude that under the aforesaid circumstances she would be justified in living away from the matrimonial home which she has been constrained to leave and demand maintenance. Similarly in this scenario the husband, who has desired the company of his wife and has demanded the same under the legal notice, must be obligated to first show that he can maintain the wife, to start maintaining the wife and then to claim his conjugal as well as his any other rights.
16. It may be mentioned that in every petition of the husband whether he demands the company of the wife in a Petition of Restitution of Conjugal Rights or whether he demands his own freedom from his wife in a Petition for Divorce, the condition precedent for the grant of the reliefs must be that he is himself ready and willing to discharge his marital obligations which includes the duty to maintain his wife in keeping with his own (6) (1) Revn 70/12
demands/prayers in his petition. The husband must, therefore, show his own offer to demonstrate how he wants to perform his part of the marriage contract. A husband driving his wife to file an application for her own maintenance is in itself inconsistent with his own marital obligations, let alone the husband challenging and defending such application. No husband who fails to maintain his wife can have the right to demand his conjugal rights. The husband himself first show that he is capable of maintaining his wife and then demand her company.
17. Seeing the admitted facts and the husband's case on the aspect of the wife's demand for maintenance, the wife's act in leaving the matrimonial home is seen to be just and reasonable. Hence the quantum of maintenance would have to be adjudged.
18. Consequently the wife's petition would not deserve total rejection on the premise that the wife did not take legal steps soon after she left the matrimonial home to put on record the demand of dowry. It must be appreciated that wives, such as the petitioner herein, may not make allegations of mental domestic violence essentially on dowry demands to put them on record. In this case, so soon as the demand for her return to the matrimonial home was made, she put on record the demand of dowry and thereafter lodged her criminal complaint.
19. The Courts must, therefore, look not only to the form of the allegations but the depth of the substance. The Courts must weigh the cases of the husband and wife more specially in case of cruelty, mental or physical.
20. An interim maintenance of Rs.1000/- was fixed in the petition. (7) (1) Revn 70/12
The final maintenance has been rejected. Under the aforesaid circumstances it is seen that there is a gross error in appreciating the justification of the wife in leaving her matrimonial home. That is required to be corrected in the Criminal Revision Application. It is corrected as aforesaid. The extent of the maintenance claimed by the wife shall have to be decided by the trial court. Pending that decision, the interim maintenance must and shall be paid.
21. Hence the impugned order of the learned Family Court Judge is revised with regard to issue No.1. In this light issue Nos. 2 & 3 shall be once again decided by the learned Judge.
22. Both the parties shall be entitled to rely upon the evidence already led and to lead further evidence, if they so desire. Until then the interim maintenance amount shall continue to be paid. Maintenance amount has not been paid from the date of order i.e. 20th September, 2010. The husband shall have to pay the arrears also. The husband shall be entitled to pay the arrears in equal monthly installments of Rs.1000/- p.m. until the arrears are cleared along with future maintenance amount of Rs. 1000/- p.m. until the final maintenance order is passed by the trial Court.
23. Criminal Revision Application is disposed of accordingly.
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