The central legal point established in the judgment is the importance of establishing a valid and subsisting marriage for the grant of restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955.

A. K. PARICHHA, J.

( 1 ) BOTH the appeals having arisen out of an analogous judgment and decree passed by the Judge, Family court, Cuttack are taken together for disposal of this common order.

( 2 ) THE appellant claiming herself to be the wife of the respondent filed Civil proceeding No. 472 of 2000 against the respondent before the Judge, Family Court, cuttack under Section 9 of the Hindu Marriage act, 1955 (in short, "the Act") demanding restitution of conjugal rights. The plea of the appellant is that she and the respondent were married at Ram Mandir, bhubaneswar on 7th February, 2000 and lived as husband arid wife thereafter at cuttack for some months but thereafter the respondent withdrew from society without any reasonable excuse. The respondent entered appearance and filed written statement denying his marriage with the appellant and contending inter alia that the story of marriage depicted by the appellant is an imaginary one and has been designed simply to blackmail him and his family. The respondent also filed Civil Proceeding No. 156 of 2001 before the Judge, Family Judge, cuttack seeking a declaration that the appellant is not his married wife. In that proceeding the appellant filed a petition under order 7, Rule 11, C. P. C. to reject the plaint on the ground that the Family Court, cuttack does not have the jurisdiction to give negative declaration about the marital status of the appellant.

( 3 ) LEARNED Judge, Family Court, Cuttack felt that the facts and issues involved in Civil proceeding Nos. 472 of 2000 and 156 of 2001 are one and same and therefore recorded one set of evidence and disposed of both the proceedings by the impugned judgment dated 8-12-2003. In that judgment the family Court declared that appellant is not the married wife of the respondent and decreed Civil Proceeding No. 156 of 2001. Consequently learned Judge rejected the prayer of the appellant for restitution of conjugal rights and dismissed Civil Proceeding No. 471 of 2000. Aggrieved by the said order appellant has filed the present appeals.

( 4 ) MR. D. P. Sarangi, learned counsel for the appellant submitted that the Family court committed gross illegality by disposing of Civil Proceeding No. 156 of 2001 without giving appellant an opportunity of filing written statement or adducing evidence. He also submitted that evidence adduced by appellant clearly establish a valid marriage between the parties, but learned Judge, family Court, Cuttack without properly appreciating the evidence on record erroneously held that there was no valid marriage. According to him evidence of the P. Ws. should have been believed and no reliance should have been placed on the statement of the O. P. Ws. whose evidences were improbable and unreliable in nature.

( 5 ) MR. S. P. Mishra, learned counsel for the respondent, on the other hand, argued that the facts and issue involved in both the civil Proceeding being one and the same, there was no scope for a separate trial and the learned Judge, Family Court, Cuttack was legally justified in recording one set of evidence and disposing of both the proceedings analogously by a common order. He submitted that the plea and evidence of the appellant are contradictory and unreliable and was rightly rejected by the Court below. He further submits that Section 7, Explanation (b) of the Family Court Act empowers a Judge, Family Court to declare the marital status of a party and therefore, there was no scope of rejecting the plaint of Civil proceeding No. 156 of 2001. According to him, when evidence on record clearly establishes that plea of marriage between the parties is imaginary one, it was proper on the part of the trial Court to declare that appellant is not the married wife of the respondent and she is not entitled to a decree for restitution of conjugal rights.

( 6 ) IN Civil Proceeding No. 472 of 2000 the appellant approached the Court under section 9 of the Act for restitution of conjugal rights. Section 9 stat