Restitution of conjugal rights can be granted if one spouse withdraws from the other's society without reasonable excuse; allegations of desertion must be substantiated with evidence.

JUDGMENT :

Sujit Narayan Prasad, J.

1. Both the appeals have been directed to be listed together and as such, are being taken up together.

2. The appeal being F.A. No.70 of 2023 preferred by the appellant- husband against the decree passed on an application filed under Section 9 of the HINDU MARRIAGE ACT , 1955.

3. The appeal being F.A. No.135 of 2023 has also been filed by the husband against the denial of the prayer for dissolution of marriage on the ground of ‘desertion’.

4. This Court, taking into consideration the ground which has been taken for dissolution of marriage on merit, i.e., the ground of desertion, hence, is of the view that appeal being F.A. No.70 of 2023 is to be considered first since the outcome of the said judgment will have bearing upon the appeal being F.A. No.135 of 2023, due to the reason that if the appellant will succeed in F.A. No.70 of 2023 allowing the Restitution of Conjugal Rights, then, the ground of desertion will be said to be proved, therefore, the appeal being F.A. No.70 of 2023 is being taken up first.

F.A. No.70 of 2023

5. The appeal being F.A. No.70 of 2023 filed under Section 19(1) of the FAMILY COURTS ACT , is directed against the Judgment and Decree dated 14.02.2023 passed by the learned Addl. Principal Judge, Addl. Family Court No.II, Dhanbad in Original Suit No. 181 of 2020, whereby and whereunder, the learned Court has decreed the suit in favour of the petitioner-wife (hereinafter referred to as the ‘respondent-wife’) filed under Section 9 of the HINDU MARRIAGE ACT for restitution of Conjugal Rights.

6. The brief facts of the case, as per the plaint of plaintiff (respondent- wife herein), which required to be enumerated, needs to be referred as under:

7. It is the case of the plaintiff/petitioner (respondent-wife) that petitioner-wife and respondent-husband are legally married. Their marriage was solemnized on 11-02-2008 according to Hindu Rites and Customs at Etwari Nagar, Hirapur. After marriage, both these petitioner and respondent had been lived together as husband and wife at Etwari Nagar, Hirapur. Out of the wedlock, the couple was blessed with a female child, now she has died.

8. It has further been stated that the respondent-wife was resided since 05-03-2008 till 04-08-2008 in her matrimonial house, but since then, she was forced to leave her matrimonial house due to ill treatment by the respondent and his family members for dowry and had to live at her parents’ house. It has further been stated that the petitioner is always ready to lead conjugal life with her husband peacefully and the said matter has been stated by the petitioner so many times before the mediator and at Family Court, Dhanbad and before this Court. The petitioner is entitled to a decree for Restitution of conjugal rights against her husband. On the aforesaid pleadings, petitioner has sought relief to pass decree for restitution of conjugal right.

9. On the other hand, the respondent-husband (appellant herein) has filed written statement and he has stated that the present suit is not maintainable either in law or on facts and circumstances of the suit. Para-1 of the suit is admitted by the respondent. Para-2 of the suit is her own statement so the respondent-husband has nothing to say in this matter. Para-3 of the suit is false and fabricated as the petitioner never came her matrimonial house to lead conjugal life and neither she has been tortured by the respondent and his family members for the purpose of dowry. It is true that many contested cases are pending between both parties before learned court as well as Hon’ble High Court, Ranchi and thus, relations be