JUDGMENT :

Dinesh Kumar Singh, J.

1. Heard learned counsel for the appellant and the respondent.

I.A. No. 2843 of 2017

2. The aforementioned Interlocutory Application was preferred for condoning the delay of 30 days in filing the present appeal.

3. It appears that notices were issued in the limitation matter to the sole respondent vide order dated 29.8.2017. The office note dated 18.10.2017 reflects that notices were validly served upon the respondent and she entered appearance through her counsel but the delay was condoned vide order dated 27.11.2017, when none appeared on behalf of the sole respondent.

4. The present Miscellaneous Appeal has been filed for setting aside the judgment dated 01.08.2016 passed by learned Principal Judge, Family Court, Lakhisarai in Matrimonial Case No. 14 of 2016 whereby the appellant has been directed to restitute the conjugal rights with the respondent.

5. The factual matrix of the case is that the respondent claimed to have performed marriage with the appellant in the year 2011 at Rajgir with consent of the appellant in accordance with the Hindu rites. Receipt nos. 297 and 298 dated 12.6.2011 were issued by Rajgrih Tirth Raksharth Panda Samiti, Rajgir in favour of the appellant and the respondent and consequently, joint photograph was taken. The respondent along with the appellant went to Lakhisarai after the marriage. Subsequently, they were blessed with a baby boy who was two and half years old at the time of filing of matrimonial case. Since the appellant subsequently developed relationship with some other girl and was also aggrieved with non-fulfillment of dowry demand, the respondent was driven out from the matrimonial house on 27.11.2015. As a result, the respondent filed Matrimonial Case No. 14 of 2016 under Section 9 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) before Principal Judge, Family Court, Lakhisarai for restitution of conjugal rights.

6. The impugned judgment suggests that the appellant appeared and filed written statement but thereafter he never appeared before the learned Court below, nor produced any evidence nor cross-examined the witnesses of the respondent.

7. The respondent produced two witnesses- PW-1 being the respondent herself and PW-2 Mala Devi being the mother of respondent. Both the witnesses have deposed to the effect that the marriage was performed at Rajgir on 12.6.2011, a receipt was provided by the religious authority and subsequently, the respondent and the appellant were blessed with a male child. The birth certificate of the child reflects the mother's name as Soni Kumari, the respondent and father's name as Banti Kumar, the appellant.

8. The learned Principal Judge, Family Court, Lakhisarai framed three issues which read as follows:-

1- D;k vkosfndk foi{kh dk oS| iRuh gS\

2- D;k vkosfndk dks okn ykus dk valid cause of action gS\

3- ;fn vkosfndk foi{kh dh oS| iRuh gS] rks vkosfndk foi{kh ls nkEiR; vf/kdkj izR;kLFkkiuk (Restitution of Conjugal rights) ds vf/kdkjh gS ;k ugh\

9. The learned court below examined the Receipt nos. 297 and 298 dated 12.6.2011 issued by Rajgril Tirth Raksharth Panda Samiti, Rajgir in favour of the appellant and the respondent, which have been marked as Exht. 1 and 1/1 and the said receipts bear the names of the respondent and the appellant. The mother and child safety card also bears the names of the appellant and respondent as the parents, which was marked as Exht. 2. The joint photographs of the appellant and the respondent has been exhibited as Exht. 3.

10. Considering the evidence of AW 1 and AW 2, the learned Court below came to a definite finding that the respondent is the legally wedded wife of the appellant. The respondent has valid cause of action and since the respondent is legally wedded wife of the appellant, hence she is entitled to seek the remedy for restitution of conjugal rights. The appellant did not even choose to appear nor to deny the factum of marriage and to cross-examine the witnesses. Hen