IMPORTANT POINT
Restitution of conjugal rights – Remedy of restitution of conjugal rights is a positive remedy that requires both parties to live together and cohabit – Rights and duties arising out of marriage are governed by Special Marriage Act and not by personal laws.

ORDER

The instant appeal has been filed on behalf of the appellant under Section 19(i) of the Family Courts Act, 1984 against the judgmentdated 28.11.2023 [decree signed on 11.12.2023] passed by the learned Principal Judge, Family Court, Deogharin Original Suit No.137 of 2021, whereby and whereunder, the Suit for restitution of conjugal right filed by the petitioner husband (appellant herein) under section 22 of the Special Marriage Act 1954 has been dismissed.

2. The brief facts of the case are referred herein as under:

The case of petitioner/appellant is that the respondent is the legally wedded wife of the petitioner and their marriage was solemnized on 04.08.2015. After marriage, both the petitioner and respondent had been living together as husband and wife at Amarpur. After some days of marriage, the respondent came to her parental house on 10.10.2015, without any reasonable excuse and she has left society of the petitioner. The petitioner requested the respondent to lead conjugal rights on several occasions but the respondent always refused to accompany with the petitioner and she had stated to the petitioner to leave his profession and settle at the Deoghar, as Gharjamai. The petitioner is a Pathologist and he works at Govindpur. The petitioner is ready and willing to maintain the respondent with full dignity and honour and he has no alternative but to take recourse of this no Court for restitution of his conjugal rights. The cause of action for the suit arose on 27.12.2019, when the respondent refused to live with the petitioner.

3. Notice was issued to the respondent who appeared and filed her written statement stating therein that the instant suit is misconceived, unwarranted and not maintainable either on facts or material available on record.

4. It has further been stated that the petitioner had suppressed the fact that he was married since earlier and he had a child also from his first wife. The petitioner had taken away the original sale deed of the land belonging to the respondent’s father and he was pressurizing the respondent and he father to execute a Gift Deed of said land in his favour and when the said demand of petitioner was refused by the respondent, he started to treat the respondent with cruelty due to which the respondent had to file a petition under section 125 Cr.P.C. being Original Maintenance Case No. 220 of 2018 which was allowed vide order dated 5.12.2019 directing the petitioner to pay Rs.8,000/- per month as maintenance to his wife.

5. It is further stated that there is threat of life of the respondent by the hands of the petitioner and his first wife. The instant case has been filed by the petitioner only to put undue pressure upon the respondent so that the petitioner may escape from the liability of paying maintenance.

6. On the basis of the aforesaid pleadings of the parties, altogether four issues have been framed by the learned Family Judge which are as follows:—

(i) Whether the suit as framed is maintainable for the relief claimed?

(ii) Whether the petitioner has valid cause of action for the suit?

(iii) Whether the opposite party/respondenthas deserted the petitioner without any just cause?

(iv) Whether the petitioner is entitled to get the relief as claimed or any other relief?

7. The evidences have been laid on behalf of both the parties. The petitioner husband had examined three witnesses in support of his claim namely P.W.1 Md. Akil Alam (petitioner/appellant), P.W.2 Sandeep Kumar and P.W.3 Md. Iqbal Alam.

8. On behalf of the respondent wife two witnesses had been examined namely RW.1 Manju Chakravarty and R.W.2 Tumpa Chakravarty (respondent wife).

9. After appreciating the evidences, the Principal Judge, Family Court, Deoghar vide judgment dated 28.11.2023 has dismissed the Suit with cost.

10. The appellant husband being aggrieved and dissatisfied with the impugned judgment dated 28.11.2023 [decree signed on 11.12.2023] passed in Original Suit No. 137 of 2021 has filed