The Court emphasized that the respondent's second illegal marriage was a proper ground to refuse to live with the husband, leading to the decision to set aside the decree of restitution of conjugal rights.

Anjuli Palo, J.

1. This appeal has been filed by the appellant-wife against the judgment and decree dated 13.5.2005 passed by Additional District Judge, Lakhnadaun, District Seoni in C.S. No. 14-A/04 whereby the application filed by the respondent-husband under Section 9 of the Hindu Marriage Act for restitution of conjugal rights has been allowed. It is not in dispute that the appellant and respondent are husband and wife. Their marriage was solemnized on 9.5.1997 according to Hindu religion and rites. They have a daughter and a son. Since 20.2.2004, they are living separately.

2. In brief, the case of the respondent is that the appellant went to her maternal home to meet her relatives, but she did not return back. Thereafter, the appellant-wife refused to live together with the respondent-husband. After so many efforts, the respondent-husband failed to bring her to the matrimonial house. Therefore, respondent-husband filed a case under Section 9 of the Hindu Marriage Act for restitution of conjugal rights against the appellant-wife. The appellant-wife denied the allegations made by her husband and submitted that the respondent/husband used to beat her for demand of dowry. Then she filed an application under Section 125 of Cr.P.C. against him before the Court of Judicial Magistrate, First Class, Balaghat. Hence, the respondent-husband filed the said application.

3. Learned Trial Court considered the evidence of both the parties and found that the appellant was residing separately from the respondent-husband without any proper reason. Therefore, a decree under Section 9 of the Hindu Marriage Act for restitution of conjugal rights has been passed against the appellant.

4. The appellant challenged the aforesaid findings on the grounds that learned Court below ought to have considered that there is sufficient, reasonable and plausible cause with the appellant to live separately because her life may be endangered at the hands of the respondent. The respondent used to beat her in cruel manner due to suspicion of her character. Appellant filed an application under Section 125 of Cr.P.C. against the respondent and to counter the case just to save himself, respondent filed the application under Section 9 of the Hindu Marriage Act with an ulterior motive. It deserves to be dismissed.

5. We have heard learned Counsel for the appellant.

6. The case is pending since 2005. So many opportunities were granted in favour of the parties to arguing the matter. Record of the case indicates that the respondent is represented by his Counsel. On 15.3.2016, it was informed that the respondent has contracted second marriage and is now living with his second wife. Therefore, it was directed to bring the documents on record along with affidavit of the appellant and it was also directed that appellant and respondent remain present before this Court on 26.4.2016, but the direction was not complied by the respondent. Therefore, on 26.4.2016, case was fixed for final hearing. It seems that by the passage of time, respondent has lost interest in prosecuting the case, hence, the matter is considered on its merit.

7. In compliance of the order dated 15.3.2016, the appellant filed the copy of order-sheet dated 22.7.2009 of Court of C.J.M., Balaghat. Istgasa put up by the Police Station Kotwali, Balaghat against the respondent for offence under Sections 494/34 of the IPC with the copy of application under Section 163 of Cr.P.C. filed by the appellant against the respondent along with her affidavit dated 15.3.2016, which was unchallenged.

8. The inquiry report submitted by the Police Station Kotwali, Balaghat established that the respondent performed second marriage on 12.1.2009 with Sharda Bai. Sharda Bai was residing with the respondent/husband as his wife. In the absence of the counter affidavit and reply from the respondent side, the aforesaid documents cannot be ignored.

9. The second illegal marriage of the husband itself is a proper ground to refuse to li