IMPORTANT POINT
Prayer of husband for restitution of conjugal rights cannot be granted when he himself compels his wife to withdraw from his society.

C.V. Sirpurkar, J.—This first appeal under Section 28 of the Hindu Marriage Act, 1955, has been preferred against the judgment and decree dated 22.2.2006 passed in Hindu Marriage Case No. 15-A/2005 by First Additional District Judge, Hoshangabad, whereby petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights filed by the respondent/husband Kamlesh Kumar was allowed.

2. Admitted facts before the trial Court were as hereunder: Respondent husband Kamlesh Kumar married the appellant wife Rekha Malviya by Hindu rites on 11.5.2003. The appellant wife has been living separately from respondent husband since the year 2004. A daughter was born in the wedlock, who is living with the appellant wife. On the date of filing of the petition under Section 9 of the Hindu Marriage Act by respondent husband, an application under Section 125 of the Code of Criminal Procedure filed by appellant wife Rekha Malviya was pending before the Court of Judicial Magistrate First Class.

3. The case of respondent husband before the learned trial Judge was that since very beginning, the appellant wife declined to have physical relation with the respondent husband. Soon after the marriage, when he tried to establish relation, the appellant wife ran out of house and shouted at the top of her voice that she did not want to have physical relations with the respondent husband. She also shouted that her parents had married her to the respondent against her wishes and that she was, in fact, belonged to someone else. Aforesaid utterances of the appellant wife were heard by neighbour Hanif Qureshi, who tried reason it out with the appellant but she threatened that if the respondent tried to establish physical relationship with her, she would commit suicide, by consuming poison. The respondent further pleaded in the petition that he told the appellant that even if the appellant had relations with someone else prior to her marriage, the respondent was prepared to accept her as his wife. Thereafter, very reluctantly the appellant permitted the respondent to have sexual relation with her only once. As such, appellant has been inflicted cruelty upon the respondent by denying him his conjugal rights. On 5.3.2004, the appellant went to her matrimonial home at Itarsi against the wishes of the respondent, along with her elder brother Narendra. She has been living their ever since. On numerous occasions, the respondent and his family members went to appellant’s matrimonial home to bring her back but the respondent and his family members were insulted and driven away by family members of the appellant. Subsequently, the respondent filed an application in Family Reconciliation Center in P.S. Hoshangabad, where, in spite of notice, the appellant failed to appear; therefore, no compromise could be reached. The respondent is prepared to ignored past of the appellant and maintain her as his wife but she has been staying in her matrimonial home without any just cause or reason.

4. In her reply before the trial Court, appellant wife has denied that all averments made in the petition. She specifically denied that she ever declined to have marital relations with the respondent and that there was any such incident as pleaded in the petition. Her daughter Sonam @ Ashwani was born on 6.8.2004 as a result of normal conjugal relations between the appellant and the respondent. The appellant pleaded that though, her father had given sufficient ornaments, motorcycle and household items to the respondent at the time of marriage, the respondent and his family members used to pressurize the appellant to bring Rs. 50,000/- in cash in dowry. When she refused to oblige them, she was beaten and insulted by the respondent and his family members; however, not wishing to jeopardize her future, she kept tolerating the misconduct. When the appellant became pregnant, the respondent and his family members made her undergo sonography, in order to determine the sex of fetus.