Wife Who Also Sought Restitution Of Conjugal Rights Loses Challenge To Husband’s Decree As Jharkhand HC Finds No Evidence Of Cruelty

The respondent-husband filed a petition under Section 9 of the Hindu Marriage Act, 1955, seeking restitution of conjugal rights, alleging that the appellant-wife had withdrawn from his society without reasonable excuse.

The wife appeared before the Family Court but did not file a written statement despite several opportunities.

The Family Court heard the matter ex parte, recorded the husband’s evidence by affidavit, and decreed restitution of conjugal rights.

The wife appealed, alleging, among other things, cruelty, that the husband had obtained the decree to support later divorce proceedings, and that the evidence-taking procedure was unlawful.

The appeal also concerned the wife’s contention that evidence in an appealable case had to be recorded in accordance with Order XVIII Rule 5 of the Code of Civil Procedure, 1908 (“CPC”).

Section 9 of the Hindu Marriage Act permits a decree for restitution of conjugal rights where one spouse has withdrawn from the society of the other without reasonable excuse; desertion need not be proved.

Under Order XVIII Rules 4 and 5 CPC, examination-in-chief may be given by affidavit, including in appealable cases; Rule 5 governs the recording of evidence where applicable, including the recording of evidence subject to cross-examination.

The Court relied on Ameer Trading Corporation Ltd. v. Shapoorji Data Processing Ltd., (2004) 1 SCC 702, and Rasiklal Manikchand Dhariwal v. M/s M.S.S. Food Products, (2012) 2 SCC 196, for the compatibility of affidavit evidence with the requirements of Order XVIII.

The Court also noted that, where no written statement is filed, the trial court may proceed under Order VIII Rule 10 CPC, though it required the husband to prove his case by evidence.

The Court rejected the procedural challenge, holding that examination-in-chief by affidavit was permissible and that the absence of cross-examination in the ex parte proceedings meant the appellant had not shown a breach of Order XVIII Rule 5.

On the substantive issue, the wife’s allegations of cruelty and being ousted from the matrimonial home were unsupported by pleadings or evidence; she had not filed a written statement or cross-examined the husband’s witnesses.

The husband’s evidence therefore stood unchallenged, and the Court found no basis to disturb the finding that the wife had withdrawn from his society without reasonable excuse.

The Court left questions concerning the parties’ conduct, the alleged purpose of the decree, and the pending divorce proceedings for determination by the trial court hearing the divorce case.

Pending interlocutory applications were disposed of.