The denial of marriage in a suit for restitution of conjugal rights does not automatically render the suit not maintainable under the Family Courts Act. The court must satisfy the truthfulness of the statements made in the petition and the absence of legal grounds for refusal of the application.

JUDGMENT :

J.K. MAHESHWARI, J.

1. This first appeal under Section 19 of the Family Courts Act, 1984 read with Section 28 of the Hindu Marriage Act, 1955 (hereinafter referred to as the HMA) arises out of the judgment and decree dated 12.1.2018 passed by First Additional Principal Judge, Family Court, Jabalpur in Hindu Marriage Case No. 336-A/2013 by which the suit filed by the appellant/wife seeking restitution of conjugal right has been dismissed as not maintainable in view of the judgment of Division Bench of Chhattisgarh High Court in the Case of Santosh Kumar Pandey vs. Smt. Ananya Pandey, AIR 2013 Chh. 95.

2. On perusal of the impugned judgment, it reveal that the factum of performance of marriage pleaded by the appellant was denied in the written statement by defendant, however, observed that on having a denial of performance of marriage, petition under Section 9 of the HMA is not maintainable as per the judgment in the case of Santosh Kumar Pandey (supra). Therefore, the Family Court allowing the application filed by the respondent on 31.7.2014, dismissed the suit for restitution of conjugal right. While passing the said order, the Court has also referred the provision of Section 10(3) of the Family Courts Act whereby the Family Court is not prevented from laying down its own procedure.

3. Learned counsel appearing for the appellant contends that the jurisdiction of the Civil Court is conferred to the Family Court in respect of the suits and proceedings of the nature referred to in the Explanation of Section 7(1) of the Family Courts Act and the said Court would be deemed to be the District Court or subordinate Civil Court to which jurisdiction of the Family Court is extended. The Explanation specifies that suits and proceedings between the parties to a marriage may be brought; for a decree of nullity of marriage or restitution of conjugal rights or judicial separation or dissolution of marriage; for a declaration as to the validity of a marriage or as to the matrimonial status of any person; with respect to the property of the parties or of either of them; for an order or injunction in circumstances arising out of a marital relationship; for a declaration as to the legitimacy of any person; for maintenance or in relation to the guardianship of the person or the custody of, or access to, any minor. As per Section 8 of the Family Courts Act, after establishment of the Family Court, the jurisdiction of the District Court or subordinate Civil Court in respect of any suit or proceeding of the nature referred to in the Explanation of Section 7(1), has been excluded and given to the Family Court to the area to which it extends.

4. In such circumstances, if any suit is filed seeking restitution of conjugal rights either by husband or the wife alleging that they have withdrawn from the society of other, may approach to the Family Court and on being satisfied regarding truthfulness of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree the restitution of conjugal right accordingly. Therefore, in a suit for restitution of conjugal right the existence of marriage is a sine qua non but on denial of the said marriage, the satisfaction is required to be recorded regarding truthfulness of the said statements and the legal ground for grant of such relief, which can be proved by either party. The marriage may be proved by customs or ceremonies sacraments but mere denial of the marriage without recording satisfaction to the truthfulness of the said denial, suit cannot be dismissed. The judgment of the Chhattisgarh High Court in the case of Santosh Kumar Pandey (supra) may have a persuasive value but it is not binding upon this Court, therefore, considering the basic provisions of the Family Courts Act or HMA the impugned judgment passed by the trial Court may be set aside and the suit may be restored to its file for decision on merit. In support of the said contention, r