The validity of a marriage and entitlement to restitution of conjugal rights under the Hindu Marriage Act, 1955 are contingent upon the existence of a valid marriage, as evidenced by the performance of customary rites and ceremonies.

JUDGMENT :

1. Heard Ms. Vandana Singh, holding brief of Ms. Mamta Singh, learned Counsel for the Plaintiff-appellant and Sri Sumit Daga, learned Counsel for the defendant-respondent.

2. This appeal has been filed praying to set aside the judgment and order dated 09.09.2022 in Case No.269 of 2022, (Ashish Maurya versus Smt. Anamika Dhiman), under Section 9 of the Hindu Marriage Act, 1955 (hereinafter referred to as Act, 1955) passed by the Principal Judge, Family Court, Saharanpur whereby the case filed by the plaintiff-appellant under Section 9 of the Act, 1955 has been dismissed.

Facts:-

3. Briefly stated the facts of the present case are that the plaintiff-appellant had earlier filed Case No.1028 of 2021, (Ashish Maurya versus Smt. Anamika Dhiman), under Section 9 of the Act, 1955 which was subsequently withdrawn by him stating that he does not want to press the case for the reason that a compromise has been entered and satpadi ceremony was not performed for marriage. Again he filed Case No.269 of 2022, (Ashish Maurya versus Smt. Anamika Dhiman), under Section 9 of the Act, 1955 which has been dismissed by the impugned judgment dated 09.09.2022. Aggrieved with this judgment, the plaintiff-appellant filed the present appeal.

4. In her written statement, the defendant-respondent has clearly denied any marriage between her and the plaintiff-appellant. She made several allegation in her written statement and specifically stated the story of marriage is totally false and in fact there was no marriage at all and the plaintiff-appellant is regularly attempting to black mail her. She has also lodged FIR No.0475 of 2021, dated 04.10.2021, under Sections 384, 328, 506, 376, 427 and 504 IPC, Police Station Sadar Bazar, District Saharanpur in which charge sheet has been filed by the police.

Discussion and Findings:

5. We have carefully considered the submissions of the learned counsels for the parties and perused the appeal.

6. The submissions made by learned counsel for the parties give rise to the following questions:-

(a) Whether the Suit No.269 of 2022 (Ashish Maurya vs. Smt. Anamika Dhiman) filed by the plaintiff-appellant was barred by Order II Rule 2(3) of the Civil Procedure Code?

(b) Whether marriage certificate issued by Arya Samaj is proof of a valid marriage?

(c) Whether the plaintiff is entitled for a decree of restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955?

Question No.(a) Whether the Suit No.269 of 2022 (Ashish Maurya vs. Smt. Anamika Dhiman) filed by the plaintiff-appellant was barred by Order II Rule 2(3) of the Civil Procedure Code?

7. We find that the plaintiff has earlier filed a Suit No.1028 of 2021 under Section 9 of the Act, 1955 in which subsequently he moved an application stating as under:

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8. Order II Rule 2(2), C.P.C. provides as under:

“Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.”

9. Undisputedly, the plaintiff-appellant has earlier filed the aforesaid Suit No.1028 of 2021 in which he moved an application stating that “Saptpadi” was not conducted as per Hindu rites and rituals and that he does not want to press the suit and that he shall not reinitiate any proceeding. In the aforesaid suit, the defendant-respondent/ girl ha