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PREM v ASHOK - CMA Case No. 1378 of 2004 [2007] RD-RJ 447 (19 January 2007)



S. B. CIVIL MISC. APPEAL NO. 1378/2004



Date of Judgment:

Hon'ble Mr. Justice R. S. Chauhan

Mr. Rajpal Choudhary for the appellant.

Mr. D.S. Jadoun for the respondent.

By Court:

The appellant has challenged the judgment dated 2.6.04 passed by the District Judge, Tonk whereby the learned Judge has allowed the application filed by the respondent under Section 9 of the Hindu Marriage Act, 1955 (henceforth to be referred to as 'the

Act', for short).

The brief facts of the case are that the appellant-wife and the respondent-husband were married about nineteen years back.

The appellant lived with the husband for eight long years. During the said period, she also gave birth to a child. However, because of the cruel treatment by the in-laws, the child was born very weak.

Subsequently, the child died. According to the appellant her marital life has been a saga of abuse and torture by the in-laws. Since the death of the child she has been taunted, tortured and abused for the said death. Faced with a torrent of cruelties, and having no other option, she eventually left the matrimonial home and went back to her parental place. Since she was unable to support herself, she eventually filed an application under Section 125 of the Criminal

Procedure Code (henceforth to be referred to as 'the Code', for short) for maintenance from the respondent. During the pendency of the said application, the respondent filed an application under

Section 9 of the Act. In order to support his case, he examined five witnesses; the appellant produced four witnesses. After hearing the arguments and after going through the oral and documentary evidence, vide judgment dated 2.6.04, the learned Judge allowed the application and directed the appellant to resume cohabitation with the respondent. Hence this appeal before this Court.

Mr. Rajpal Choudhary, the learned counsel for the appellant has argued that the respondent had filed application under

Section 9 of the Act in order to escape his liability for maintaining his wife under Section 125 of the Code. Moreover, the said application under Section 9 has been filed after inordinate delay of eight years. During this interim period no effort was ever made to bring back the appellant to the matrimonial home. Therefore, the application under Section 9 deserves to be dismissed in view of

Section 23(1)(d) of the Act.

On the other hand, Mr. D.S. Jadoun, the learned counsel for the respondent, has vehemently argued that every effort was made to bring the appellant back to the matrimonial home but she bluntly refused to resume cohabitation.

We have heard the learned counsels for the parties and have perused the impugned judgment.

According to Ashok's testimony, he has admitted that he filed the application under Section 9 only after an application have been moved by the appellant under Section 125 of the Code. In large number of cases, this court has noticed the tendency of the husband to bring an application under Section 9 of the Act after an application for maintenance has been moved by the wife under

Section 125 of the Code. Such a subterfuge has been adopted by the husband in order to escape his liability for having to pay maintenance to the wife. For, in case Section 9 application is allowed and the wife refuses to resume cohabitation, then the husband claims the exception granted by Section 125 (4) of the Code.

Therefore, it seems that even in the present case the husband has moved the said application with an ulterior motive of escaping his liability under Section 125 of the Code.

For eight long years the respondent did not make any effort to bring back his wife. Therefore, under Section 23(1)(d) of the

Act, the application is hit by latches and delays. Section 23(1)(d) clearly states that the Court should keep in mind that there has not been any unnecessary and improper delay in instituting the proceeding. In the present case there has been an inordinate delay of nine years. The said delay has not been explained by the respondent. In case of Durga Lal Bhati Vs. Smt. Kamla Devi ( 2002 (1)

WLC (Raj) 169 ) wherein an application under Section 9 was moved after 20 years of the separation of the couple, this Court had set aside the decree passed in favour of the wife on the ground of delay and latches.

In the result, this appeal is allowed and the judgment dated 2.6.04 is quashed and set aside. There shall be no order as to costs.




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