Honble TATIA, J.–This misc. appeal has been preferred to challenge the judgment and decree dated 18.5.2006 by which the Judge, Family Court, Jodhpur decided two petitions, one filed by the appellant Prakash under Section 13 of the Hindu Marriage Act and another filed by respondent Smt. Kavita under Section 9 of the Hindu Marriage Act. The trial court dismissed the appellants petition under Section 13 of the Hindu Marriage Act and granted decree for restitution of conjugal rights under Section 9 of the Hindu Marriage Act in favour of the respondent by the same judgment which is impugned in this appeal.

(2). Brief facts of the case are that the marriage of the appellant and respondent took place on 9.5.1997 at Jodhpur according to Hindu rites. According to the appellant, the respondent on the date of marriage itself, disclosed that she does not like appellant and she married appellant only because of the fact that her elder sisters marriage was already fixed and respondents mother and father were willing to solemnized the marriage of both of their daughters together and,therefore, under pressure she agreed for marriage. She disclosed that she was interested in marrying with well educated person, whereas the appellant is not well educated. According to the appellant he tried to bear with all these comments of the respondent. On next day on 11.5.1997, the respondent went to her parents house and she did not return for 8 to 10 days then the appellant tried to bring the appellant back to the matrimonial house. At this time, the respondent put a condition that the appellant will have to live separate from the family and this condition was accepted by the appellant. According to the facts pleaded in the divorce petition, the respondent used to go to her parents house every second or third day. However, ultimately the respondent became pregnant but according to the appellant, the respondent was since not liking the appellant, therefore, she wanted to get rid of the unborn child by abortion and she went to her parents house on 15.5.1998 so that she may get abortion with the help of her mother and father. It is not pleaded by the appellant that whether in fact, any abortion was performed upon the respondent but it is only stated that the child could not survive. It is stated that from 15.5.1998 the respondent did not come to the house of the appellant despite several efforts made by the appellant as well as his relation.

(3). According to the appellant when all efforts failed, then respondents father called Panchayat of their community on 16.3.1999 and several Panchas were made their efforts for reconciliation but on finding that the appellant and respondent cannot live together, it was decided that the marriage may be dissolved. On 17.3.1999, two deeds were executed on the stamp paper of Rs.100/- each wherein both the parties, appellant and respondent, agreed to separate from each other. The said deeds were authenticated by the Notary Public and it was decided that both the parties will go in the family court and will submit mutual consent divorce petition. The deed was kept with the Panchas of the Society Mangala Ram and Prithvi Singh. However, on 17.5.1999, the respondent did not turn up to submit the divorce petition in the Family Court. The appellant contacted respondent and her father and he tried to persuade the respondent and her father through Panchas but the defendant avoided to come in the Family Court and ultimately, she started giving threats on telephone that she will ruin the family members of the appellant and she will see that the appellant and his family members will be put in jail. The appellant also stated that the appellant wanted to separate peacefully and was ready to handover all the goods of the respondents but the respondent was not agreeable. On these grounds, divorce petition was submitted by the appellant in the Family Court under Section 13 of the Hindu Marriage Act.

(4). The appellant submitted an application

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