Sharad Kumar Sharma, J.

This is the appeal which is listed with connected FA No. 122 of 2012 Pankaj Kumar v. Megha. But since the instant appeal is against the judgment under section 9 of the Hindu Marriage Act and appeal FA No. 122 of 2012 is against the judgment passed under Section 13, they are being decided separately, as parameters of consideration are absolutely different for Section 9 and section 13 of the Hindu Marriage Act.

2. The husband has filed appeal against the grant of a decree under Section 9 dated 29.09.2012 in Suit No. 20 of 2010 "Megha Upadhyaya v. Pankaj Kumar", by the proceedings instituted by the plaintiff-respondent under section 9 of the Hindu Marriage Act for restitution of conjugal rights was decreed.

3. The grounds taken for challenging the judgment impugned by the appellant are that there has been cruelty as pleaded by the plaintiff-respondent, soon after the marriage she started levelling allegations against husband on trivial issues, when all the efforts made by the parents failed. To resolve the disputes and also because of the fact that the cruelty did not abate, suit was filed for dissolution of marriage.

4. The challenge was given to the impugned order under section 9 of the Hindu Marriage Act by the husband. The case of the appellant was that there was cruelty and desertion is at the behest of the respondent. She had knowingly deserted w.e.f. 05.07.2003 when she has left the house on her own free will. The appellant also contended that he has made all sincere efforts to fetch her back but the same was not acceded to. As such, the desertion is because of the respondent.

5. The wife has also simultaneously instituted the proceedings under section 498-A, 504, 506, 323 of IPC and 3/4 of Dowry Prohibition Act against the appellant. On given challenge to the summoning order, passed in the proceedings under Section 498- A, 504, 506, 323 of IPC and 3/4 Dowry Prohibition Act. The revisional court vide order dated 24.10.2011 had set aside the summoning order as against rest of the family members except the husband-appellant. Setting aside the summoning order in the criminal proceedings would show that as a matter of fact, there was no cruelty exercised by the husband because the proceedings on the criminal side stood terminated this itself will be resulting into a cruelty.

6. The appellant placed reliance on the deposition made by the respondent in his cross-examination wherein it was alleged that the respondent has admitted the fact of institution of the criminal proceedings, as well as, proceedings under section 9 of the Hindu Marriage Act.

7. According to the case of the plaintiff-respondent, was that she has instituted proceedings under section 9 of the Hindu Marriage Act. Because after being married on 29.11.1999, according to the Hindu rites and rituals and the father of the respondent is said to have invested a handsome amount in performance of the marriage. In the application under section 9 of the Hindu Marriage Act, the respondent pleaded that there was conspiracy hatched against her by her in-laws, by wrongfully projecting that the plaintiff-respondent has decline on 03.12.2009 to partition in the property on the death of her parent. To develop her case, she also stated that on account of the aforesaid conspiracy in relation to the property, she was thrown out of the house at 4.00 PM on 03.12.2009.

8. The appellant-husband contended that he tried to resolve the dispute and tried to bring the respondent back, but it yielded no result. The wife's family members declined to send her back. On the basis of the false story because rather she was prohibited by the husband and his family members from performing her matrimonial obligations as she was not permitted to reside in the accommodation and she was thrown out on 03.12.2009 from the house, hence she filed section 9 application.

9. The appellant-husband, after putting in appearance stated in the objection under section 9 of the Hindu Marriage