The entitlement to cohabitation and society of the other spouse, the concept of 'just cause' for withdrawal, and the need for a sincere desire for restitution of conjugal rights.

JUDGMENT :

Smt. Anjuli Palo, J.

1. Being aggrieved by the judgment and decree dated 08.12.2017 passed by the Principal Judge Family Court, Jabalpur in Civil Suit No. 245A/2016, the appellant-husband has filed this appeal under Section 19 of the Family Courts Act, 1984 seeking restitution of conjugal rights.

2. It is not in dispute that the appellant and respondent are husband and wife. Their marriage was solemnised on 05.06.2009, however they are living separately from the year 2012-2013. They have a daughter named Gunjan @ Garima aged about 3 years.

3. The case of the appellant-husband is that, he lived harmoniously with his wife for about six months after their marriage. Thereafter, on several occasions the respondent-wife went to her maternal house. She lived there for long span of time and returned to her matrimonial house with reluctance. She is a degree holder in Master of Business Administration and used to misbehave with the appellant and his parents. After quarreling with them, she left her matrimonial house and started residing with her parents. After sometime, she gave birth to a daughter. When the appellant went there, she neither met him nor allowed him to meet his daughter. She also refused to return to her matrimonial house. Thereafter, she was willing to reside with the appellant subject to certain conditions which were fulfilled by the appellant. Even then, later she refused to live with him. Thus, a petition under Section 9 of the Hindu Marriage Act has been filed by him before the Family Court, Jabalpur for restitution of conjugal rights.

4. The respondent-wife denied all the allegations and contended that she was always ready to performed her matrimonial duties. But the appellant and his parents harassed her. They demanded Rs. One Lakh cash and a car as dowry from her parents. Thereafter, appellant beat her on several occasion. In a meeting with their family, the appellant gave in writing that in future he will not beat the respondent. Even then, he had not changed his cruel behaviour towards her. Since then, she is living separately. Therefore, she has prayed to dismiss this appeal.

5. Learned trial Court dismissed the petition filed by the appellant solely on the ground that other case under Domestic Violence Act is pending against the appellant-husband, hence, decree for restitution of conjugal right cannot be passed in favour of the appellant-husband.

6. Heard learned counsel for the parties at length. Perused the record.

7. After considering the entire evidence put-forth by both the parties, it is apparent that after marriage, when the respondent resided with the appellant, she had visited several places readily at her own accord.

During that period, she never complained against her husband. The appellant also celebrated her birthday. Sometimes, some issues arise between married couples due to various reasons such as difference of opinion, mindset, family background, etc. Married life takes some time to be settled by mutual understanding and adjustment.

8. After marriage, a spouse is entitled to cohabitation and society of the other spouse and where one spouse abandon the other without reasonable excuse, the party has a right for restitution of conjugal rights.

9. The initial onus of proving that the respondent has, without reasonable excuse, withdrawn from the society of the appellant, must obviously rest on the appellant. The mere circumstance that the wife’s allegation of cruelty in defence in any such case is not proved, would not displace that onus. However, the onus of proving reasonable excuse must rest on the respondent.

10. Similarly, the more recent and acceptable view seems to be that “just cause” must be “grave and weighty” or as it is sometimes said “grave and convincing” and that it may be distinct from a matrimonial offence. It may be distinct from cruelty to the extent that it falls short of or is less than legal cruelty but nonetheless, it is for the husband to satisfy the Court that i