HIMACHAL PRADESH NATIONAL LAW UNIVERSITY, SHIMLA

(FAMILY LAW – I)

KULDEEP KUMAR DOGRA V. MONIKA SHARMA, AIR 2010 HP 58

COURSE-IN- CHARGE:

- Dr. Sarita Klair

Assistant Professor (Law)

SUBMITTED BY:

- AYUSHI SONI (1020192020)

(5th Semester) B.A.LL.B. (Hons.)

HIMACHAL PRADESH NATIONAL LAW UNIVERSITY, SHIMLA

16 MILE, SHIMLA-MANDI NATIONAL HIGHWAY, GHANDAL DISTRICT SHIMLA,

HIMACHAL PRADESH-171014

Ph. 0177-2779802, 0177-2779803, Fax: 0177-2779802

 DECLARATION

I, Ayushi Soni, am pleased to submit an original manuscript for the case comment assignment on
Kuldeep Kumar Dogra v. Monika Sharma 1, is the result of my original piece of research work
conducted under the supervision of Dr. Sarita Klair, Assistant Professor of Law, Himachal Pradesh
National Law University, Shimla. I declare that the manuscript is an original and previously
unpublished work written by me. Due credit has been given to authors from whom content has been
taken. I agree to tackle any dispute relating to our manuscript including copyright, defamation or
contempt and agree to suffer the loss, if any, caused by violating copyright or any other rights.

Name of Student
-Ayushi Soni

1
AIR 2010 HP 58
 Table of Contents
FACTS OF THE CASE........................................................................................................................3

ISSUES FRAMED................................................................................................................................4

ARGUMENTS ADVANCED..............................................................................................................4

BY THE PETITIONER (Husband)......................................................................................................4

BY THE RESPONDENT (Wife)..........................................................................................................5

RESPONSES OF THE BENCH...........................................................................................................5

DECISION: RATION AND OBITER OF THE CASE........................................................................6

SIGNIFICANCE OF THE CASE.........................................................................................................8

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 FACTS OF THE CASE

 That the appeal has been preferred by the husband against the judgment and decree of the
learned Additional District Judge, Fast Track Court, Hamirpur, dismissing his petition under
Section 9 of the Hindu Marriage Act, 1955 (hereafter referred to as ‘the Act’).
 That it is pleaded by the appellant that he and the respondent had been married according to
Hindu rites and ceremonies on 26.4.1993 in Hamirpur.
 That they resided as husband and wife after the solemnization of marriage and had two male
children Shubham Dogra and Praful Dogra, aged 9 and 7 years respectively on the date when
the petition was instituted.
 That the family initially lived in Hamirpur till they shifted to village Khas Gran. On
10.1.2004, the respondent wife left the matrimonial house without any reasonable excuse and
started residing separately from the appellant. It was pleaded that she has willfully refused
to cohabit with the appellant, perform her duties as a wife, the appellant was ready and
willing to keep her but she has refused on more than one occasion to join his company.
 That the petitioner was resisted by the respondent on a number of grounds, primarily that the
appellant had deliberately and intentionally created a situation which was not congenial
and it was impossible for her to live with him. He had forced her to part company with him
and to take their two minor children with her.
 That She also pleaded that she was subjected to extreme mental harassment and physical
violence. She was revered by the general public as being a pious lady and was known by the
name “Sandhoori Mata”, i.e. one who gives vermilion. She was devoted to performing
Puja/prayers for the Divine Mother and had a large following where she was providing relief
to her followers from illness and mental tension etc. by merely
giving Prasad and Sindhoor etc. of the Divine Mother.
 That the appellant started resenting her popularity and forcibly took away the offerings
which were made to the deity.
 That He got incensed and even burnt the wooden bridge connecting the road to the temple
where the respondent used to perform Puja/rituals. He had the electricity and telephone
connections of the room where she was residing, disconnected.

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  That allegations of illicit relationship between the appellant and his Bhabi were also made
by the respondent.
 That the learned Judge, on the settled issues, as to whether the respondent had withdrawn
from the society of the appellant for a reasonable cause, decided in favour of the
respondent. 

ISSUES FRAMED

 Whether it is necessary to prove physical assault to withdraw from the Society of the
Spouse?
 Whether petition for Restitution of Conjugal Rights be maintainable in a case where the
separation is due to the Petitioners Cruelty?

ARGUMENTS ADVANCED

BY THE PETITIONER (Husband)

 That the appellant urges that the learned trial Court was wrong in holding that the appellant
had in any manner forced the respondent to leave the matrimonial home or had given her any
cause or excuse to withdraw from his society. 
 In particular, he refers to Ex. PW-2/A and Mark X. The first document is purported to be the
statement voluntarily made by the respondent before the Gram Panchayat and in front of a
number of persons that she is voluntarily withdrawing from the society of the appellant and
taking away all her belongings etc.
 Prove this document, the appellant has appeared as PW-1 stating that such a statement was in
fact recorded by the Pradhan of the Gram Panchayat. PW-2 Gurdev was the Pradhan of the
Panchayat, who had brought the summoned record.
 He stated in his evidence that he had brought the summoned record and has certified the
copy Ex.PW-2/A. I must note at this juncture that the document is a photo copy which has
been certified by the Pradhan. The basis on which this was done is not clear. In the record
brought by him, there is no copy or original of this statement and it is not proved as to on

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 what basis he certified it.
 It would have been altogether a different issue if this writing had been maintained on the
record of the Panchayat under some statutory rules etc. or otherwise as a general practice.
 There is nothing on record to show as to where the original writing had been kept. He admits
in his cross examination that he has no record to show as to how and on what basis Ex.PW-
1/A is purported to have been issued by the Panchayat

BY THE RESPONDENT (Wife)

 The respondent when she appeared as RW-1 has denied this writing. In these circumstances,
I hold that it is not possible to accept this document as being authentic establishing the case
of the appellant, more especially when he does not produce the original writing which may
have been in his custody or which could have been summoned from the respondent if she
was possessed of it.

RESPONSES OF THE BENCH

 One salient fact requires to be noted about this case and that is, that the son of the parties to
this case Shubham Sharma appeared as RW-6. He was 12 years when his evidence was
recorded on 15.6.2006.
 The learned Court had put questions to him to test his capacity to testify and the Court
records that he is fit in all respects to be a witness. His evidence is clear.
 He states that his father used to quarrel with his mother and wanted to appropriate the entire
offerings which were given to the Deity. He says that his mother wanted the offerings to be
applied for the purposes of worship and the temple but this was not acceptable to the
appellant and he went to the extent of getting the electricity and telephone connections
disconnected.
 He used to subject the respondent to verbal and physical abuse and also burnt down the
wooden bridge which provided access to the temple. His testimony cannot be ignored and
the so called discrepancies pointed out cannot be taken to have destroyed the veracity of
whatever he states in examination in chief.
 Admittedly both the children are residing with the mother. This fact would itself show the
attachment of the children with the mother and not with the father who now seeks to set up a

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 case that he is willing to accept the respondent out of love and affection and keep her as his
wife.

DECISION: RATION AND OBITER OF THE CASE

Section 9 of the Act provides:
“9. Restitution of conjugal rights:

When either the husband or the wife has, without reasonable excuse, withdrawn from the society of
the other, the aggrieved party may apply, by petition to the district Court, for restitution of conjugal
rights and the court, on being satisfied of the truth of the statements made in such petition and that
there is no legal ground why the application should not be granted, may decree restitution of
conjugal rights accordingly. Explanation: Where a question arises whether there has been reasonable
excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the
person who has withdrawn from the society.”

The evidence on record does not establish that the respondent has withdrawn from the society of the
appellant without reasonable or justifiable excuse. Even if the other evidence of the appellant on
record is accepted, there is nothing to establish that the respondent has not been treated with cruelty.
The evidence of the child has been considered because this would be the most natural testimony.
Merely stating that he has affinity for the mother is no ground for disbelieving his evidence.

In Sadhu Singh Balwant Singh v. Smt. Jagdish Kaur Sadhu Singh, Punjab & Haryana2, it was held:

“….The word ‘excuse’ appears to have been advisedly used. It is something less than
‘justification’, and something more than a mere whim, fad or brain-wave of the respondent. It is a
fact which has to be determined with reference to the respondent's state of mind in the particular
circumstances of each case…”

In Smt. Shanti Devi v. Balbir Singh3, considering the import of the term ‘reasonable excuse’ the
Division Bench holds:

2
AIR 1969
3
AIR 1971 Delhi 294

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“…It will have to be seen firstly. whether the husband or wife, as the case may be, has withdrawn
from the society of the other without a reasonable excuse. The second requirement is that the
court must be satisfied about the truth of the statements made in such a petition….”

“26…. In a case where the appellant is constantly abused and beaten and her husband has the
courage to do so in the presence of the wife father who too is insulted and abused in the presence of
the girl, the learned trial Judge appears to us to have been fully justified in coming to the conclusion
that the appellant was being tortured and cruelty was being practised on her. The appellant has also
stated that respondent No. 1 was threatening to take away her life by administering pills which are
ordinarily used for developing photographs, although there is no other evidence on that point. If the
relations between the husband and wife have reached such a stage that the husband was going about
telling every body who came to see him on her behalf that he would let her go only if she gave a
deed of divorce, the possibility of his taking recourse to that unfortunate step, cannot be completely
excluded. In any case, the apprehension that he may do so, will have a serious effect on the mind of
the wife. She is bound to feel un-safe in the company of such a person.”

The explanation to Section 9 requires that where a question arises whether there has been a
reasonable excuse for withdrawing from the company of the spouse, the burden of proving
reasonable excuse is on the person who withdraws from the society. In S. Jayakumari v. S.
Krishanan Nair4, the Court holds:

“6. Court cannot take a cavalier attitude in a case where a hapless mother with an infant keeps off
from her husband. Normally no wife would do that. To hold that the wife should prove physical
assault and then only the petition for restoration of conjugal rights can be dismissed in her favour is
thoroughly opposed to legal norms, fair play and propriety. Mental pain caused to the wife by
husband cannot be lightly brushed aside on the ground that there was no physical violence or
torture.”

Adverting to the explanation, the evidence of the son of the parties is sufficient to establish that
there is a reasonable cause for the respondent for withdrawal. When coupled with the statement of
the respondent herself there is no doubt in my mind that she has been subjected to physical and
mental cruelty, the husband has been insisting on appropriating the offerings of the temple etc.
where the respondent was performing Puja Archna for the general public. I also find from the record

4
AIR 1995 Kerala 139

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that the respondent has been responsible for having electricity and telephone disconnected. This fact
is proved from the evidence of RW-3 Shri Mohinder Singh, who is an employee of the Himachal
Pradesh State Electricity Board, who states that an application had been given in the office by Shri
Kuldip Kumar Dogra, son of Shri Rattan Chand Dogra for the disconnection of the meter and Shri
Pradeep Kumar, RW-4 who is working in the office of the Telephone Department at Hamirpur who
states on oath that Telephone No. 225252 was disconnected on the application of the appellant.

A conjoint reading of the evidence of the parties leaves no room for doubt that it would not be
possible for the wife (who has the custody of both the children) to live with the appellant-husband.
She has been subjected to beatings and threats by him and she reasonably apprehends that it is not
safe for her to live with the appellant. In these circumstances, I find no merit in this appeal which is
accordingly dismissed. Pending application(s) shall stand dismissed. There shall be no order as to
costs.

SIGNIFICANCE OF THE CASE

In the present case of Kuldeep Kumar Dogra v. Monika Sharma the Hon’ble Himachal Pradesh
High Court has acknowledged the fact that it is not necessary for the wife to prove physical assault
in all the cases and has given equal importance to mental cruelty on part of the husband. The Court
has observed that there is usually a reason behind desertion and that reason may be physical cruelty
or mental cruelty. In both the scenario withdrawal from the society of the spouse is justifiable.

While deciding the matters pertaining to restitution of conjugal rights it has to be observed by the
courts that whether the desertion is voluntary or is forced by the other spouse. In order to prove the
charge of desertion the aggrieved party must prove that he or she was not instrumental in forcing
the other to leave the house due to his/her conduct.

In the present case, it was observed by the court that desertion was not voluntary but was forced by
the husband through mental cruelty.

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