JUDGMENT :

RADHAKISHAN AGRAWAL, J.

1. The instant appeal is filed under Section 19(1) read with Section 28 of the Family Courts Act, 1984 (for brevity ‘Act’ of 1984) by the appellant/wife (for brevity ‘wife’) against the judgment and decree dated 22.06.2017 passed by the Family Court, Korba (CG) in Civil Suit No. 134-A/2016 whereby the suit filed under Section (7) (1)(g) of the Restitution of Conjugal Rights has been dismissed.

2. Appellant/wife has moved application with the averment that she and respondent/husband (for brevity ‘husband’) belong to Scheduled Tribe and their marriage was solemnized in the year 2012 as per their social rituals and customs and from their wedlock they were blessed with a girl child. It is stated that during pregnancy the appellant/wife was suffering from deficiency of blood and the husband did not take care of her therefore she left to her parents house at BALCO Nagar where she got treated by her father. It is stated that she gave birth to a girl child and after few days, her husband and in-laws took them to their maternal house. However, after 2-3 days, the husband informed her father to take his daughter as she is physically and mentally not fit. It is further stated that the husband kept the infant girl child away from the appellant/wife and did not allow her to feed. Appellant/wife has stated that she was ill-treated by her husband and in-laws and looking to the condition of his daughter, she was taken by her father to Balco Nagar and was given treatment for six months. It is stated that the total expenses of Rs. 8-10 lacs was spent by her father. Appellant has stated that after the birth of her child, she was kept away by the husband and therefore a social meeting was convened where the respondent/husband denied to keep the appellant/wife with him and has also refused to give the child. Thereafter on 29.06.2016, another meeting was convened where the parties amicably relegated and agreement was entered into between the parties and the husband paid Rs. 5,00,000/- towards the expenses for her treatment. On 14.03.2016, father of appellant/wife has written a letter to the head of the society for granting her maintenance of Rs. 5,000/- per month. She has further stated that the husband has deserted her and has kept her away from discharging her matrimonial obligations and therefore she has filed application for Restitution of Conjugal Rights.

3. The husband has filed reply wherein it has been pleaded that the application is not applicable as there is no provision. It has been pleaded that the wife and husband belong Scheduled Tribe and as per the agreement dated 28.02.2016, by mutual consent between the parties, the husband has agreed to pay Rs. 5,00,000/- as maintenance vide Ex.D-1. It has been stated by the respondent/husband that the wife herself has stated that their marriage is governed by the customary practices of the tribes and that the application under Section 7(1)(g) for restitution of conjugal rights is a promissory estoppel and is against the law, therefore the same may be rejected. Husband has further stated that in Para 7 of the agreement, the wife has stated that she has no objection if the daughter is under the protection of her father. Respondent/husband has further stated that the marital relations have completely dead and in the tribal society (Kanwar), as per the agreement entered into between the parties before the society at village Dhanras in the house of the appellant/wife, with the consent of the wife, the marriage has been dissolved and when the marital relation is not in existence, then prima-facie the application for restitution of conjugal rights is liable to be rejected.

4. Counsel for the appellant/wife submits that the Family Court has committed illegality by not appreciating the evidence and documents on record and relied on the evidence without pleadings. It is submitted that the Family Court has wrongly held that the applicant is living separately from her husband w