Restitution decree under Section 9 HMA denied as wife failed to prove husband's withdrawal without reasonable excuse; acquittal in cruelty case and unreliable evidence establish justification.

Judgment :

Sujit Narayan Prasad, J.

Prayer:

1. The instant appeal under Section 19(1) of the Family Court Act, 1984 is directed against the judgment dated 27.08.2022 [decree signed on 31.08.2022] passed by the learned Principal Judge, Family Court, Lohardaga in Original Suit No.36 of 2018, whereby and whereunder, the suit for restitution of conjugal right under Section 9 of the Hindu Marriage Act, 1955 by the plaintiff/ appellant, has been dismissed on contest.

Factual Matrix

2. The brief facts of the case is that the marriage of plaintiff was solemnized with defendant on 03.07.1997 before Marriage officer, Lohardaga. After marriage, she went to her matrimonial house and due to their wedlock two female children were born.

3. After birth of two daughters, behaviour of O.P. and her mother-in-law was changed and they started torturing mentally and physically to plaintiff. After that one son and one daughter were also born.

4. Thereafter, the defendant and his mother started demanding Rs.5,00,000/-. When said demand was not fulfilled the defendant and her mother in-law stopped talking with family members of plaintiff. They also told that we will solemnize marriage of defendant with other and plaintiff will be live in her maika with her children.

5. The plaintiff sent her two daughters to Bachra for study, where her mother-in-law was residing. On 10/12/2015, when demand of dowry was not fulfilled the defendant ousted to plaintiff after abusing and beating her. Then plaintiff went to her maika with two children. The plaintiff went to Bachra, where her mother-in-law was living but defendant went there and also ousted the plaintiff from there. Then plaintiff went to village-Choreya, to her sister's house. After that on 13.12.2015, she went to Kanal Spening Ltd. Company, Tamil Nadu for the purpose of livelihood with Sunita Munda, Soni Loharain, Rajmani Devi and Chavi Devi. When this fact came in knowledge of defendant, he lodged a Sanha for missing of plaintiff in Chanho P.S. They also published the said fact in newspaper. When the father of plaintiff lodged the case against defendant regarding beating and ousting from the house then defendant sought apology from his father-in-law.

6. Within one month of this occurrence, the defendant filed a suit for divorce before family court, Lohardaga on 21.01.2016 and he took away two children with him, who were living in her maika. When the appellant returned from Tamil Nadu, she came to know about this.

7. The said divorce suit being M.T.S no.-02/2016 was dismissed by the Family court on 08.03.2018. On 23/08/2016, after returning from Tamilnadu, plaintiff went to her matrimonial house then defendant started abusing and ousted her from the house and since then the plaintiff is living in her maika.

8. In the month of May 2018, plaintiff and his family members went to her matrimonial house but defendant started abusing and he has not permitted to enter in the house. The defendant has made allegation against plaintiff of fleeing away with Hemant Sahu, in this regard a Panchayati was called for but defendant did not appear in the said Panchayat.

9. Thereafter, the plaintiff filed a case of maintenance as O.M.C. No.-29/2018 and Compl