IMPORTANT POINTS
(1) Restitution of conjugal rights – Restitution of conjugal rights does not entirely depend upon right of party – Any principle of law of cannot be applied in abstract divorced from factual context.
(2) No spouse can be allowed to urge that he or she would treat other with cruelty and at the same time would also force other to co-habit with him or her by filing application under Section 9 of Hindu Marriage Act for restitution of conjugal rights under same roof.

ORDER (CAV)

The present Second Appeal has been filed under Section 100 of the Code of Civil Procedure, 1908 (for short “CPC”) being aggrieved by the Judgment and Decree dated 09.08.2024 passed in Regular Civil Appeal No. 39 of 2023 whereby, the Judgment and Decree dated 16.09.2023 passed in Hindu Marriage Petition No. 44 of 2017 by 3rd Additional Senior Civil Judge Valsad under Section 9 of the Hindu Marriage Act, 1955, has been confirmed.

2. For the sake of brevity and convenience, the parties are referred to as Petitioners and Respondents.

3. The brief facts arising in the present Second Appeal are that the Petitioner filed a Petition under Section 9 of the Hindu marriage Act, 1955 (“HMA”) for Restitution of Conjugal rights. It is the case of the Petitioner that the Petitioner and Respondent got engaged on 29.05.2016 and they got married on 13.02.2017 and after marriage, the Petitioner went to stay with the Respondent.

4. It is the Petitioner’s case that after sometime, the Respondent’s family had adopted a very unreasonable approach towards the Petitioner and therefore, on request of the Respondent the Petitioner went to stay at the address mentioned in the cause title of the Hindu Marriage Petition. It has been averred that time and again the Petitioner requested the Respondent to live with her and the Respondent did not adhere to the said request and ultimately, the Petitioner lodged a complaint before Valsad Mahila Police Station on 13.07.2017, when the Petitioner was not permitted to get inside her matrimonial house in order to fulfill her conjugal rights.

5. It is the case of the Petitioner that the Respondent had without any reasonable excuse withdrawn himself from the society of the Petitioner and therefore, the Petitioner filed Petition under Section 9 of the Hindu Marriage Act, 1955. The Respondent appeared in the said Petition and filed written statement vide exhibit 31. The main grievance of the Respondent was that no marriage was solemnized between the parties and that false complaint had been filed by the Petitioner in Valsad Mahila Police Station.

6. The Trial Court framed issues vide exhibit 42 as under:

(i) Whether the applicant proves that she is the legal wife of opponent?

(ii) Whether the applicant proves that opponent has without reasonable excuse, withdrawn himself from the society of herself?

(iii) Whether the applicant proves that she is entitles to get the decree of restitution of conjugal rights?

(iv) What order and decree?”

7. The Petitioner examined herself vide exhibit 50 and the witnesses of the Petitioner were examined vide exhibits 58 and 70 respectively. Whereas, the Opponent examined a witness at exhibit 75 and after going through the oral evidence of the parties and giving finding on all the issues, the Trial Court dismissed the Petition. aggrieved by the said order, the Petitioner filed Regular Civil Appeal No. 39 of 2023. After re-appreciating the evidence, the First Appellate Court dismissed the said Appeal and confirmed the judgment and decree passed in Hindu Marriage Petition No. 44 of 2017, hence the present Second Appeal.

Case of the Appellant/ Petitioner

8. Learned Advocate for the Petitioner has drawn attention of this Court to the fact that the Trial Court has taken into consideration the fact of separation of more than six years but the fact remains that the marriage was solemnized on 13.02.2017 and the Hindu Marriage Petition has been filed in the year 2017, therefore the Petition for restitution of conjugal rights is filed only after 1 year of marriage and therefore the period in which the Petition was pending for adjudication can not be considered by the Trial Court and the Appellate Court while considering the period of separation between the Petitioner and Respondent.

9. Learned advocate for the Petitioner has also drawn attention of this Court to the provisions of Section 9 of the Hindu Marriage Act, 1955, and has argued that under the explanation to section 9 of th