The court may refrain from enforcing restitution of conjugal rights if allegations of cruelty and ongoing criminal proceedings exist.

1. Heard.

2. The present appeal is against the judgment and decree dated 26/07/2021 passed by the Family Court, Durg (C.G.) in Civil Suit No. 39A / 2017 whereby a decree for restitution of conjugal rights under S.9 of the Hindu Marriage Act, 1955 (in short 'the Act, 1955') was passed in favour of the husband. Therefore, the instant appeal by the wife.

3. The admitted facts are that marriage in between the parties took place on 24/12/2015. Thereafter, according to the husband, the wife stayed at her matrimonial home for some period of time but subsequently she went back to her parental home on the pretext that she had to prepare and appear in B.Ed. Examination. The husband also joined the wife at her parental home where they stayed for sometime and again came back to her matrimonial home. Meanwhile, the wife became pregnant and first abortion was carried out at the instance of the sister, parents, brother - in - law. While she was carrying the second pregnancy she was sent to her parental home and thereafter she has not returned. The husband alleged that without any lawful cause the wife has withdrawn the company of the husband and on that ground S.9 application was filed.

4. Per contra, wife stated that she was subjected to torture for demand of dowry and cruelty. It was stated that since the husband was in the Police service / government job, the husband including the family members, all of them, treated the wife with cruelty for demand of dowry and Rs. 3 Lakh asked for. The wife further alleged the first pregnancy was terminated for the reason that she was severely beaten and was kicked on her abdomen. She further stated that while she was carrying second pregnancy, she was not given due care and even necessary nutritious food, which was required, was not given. Consequently, she had to come to her parental home and while coming because of her weakness, she got fainted. It is further stated that because of the demand of dowry and cruelty meted out to her, she filed a complaint with the Police for which a case under S.498 - A of IPC is registered against the husband which is pending.

5. Before the learned Family Court both the husband and wife examined themselves. The learned Family Court after evaluating the facts and evidence decreed the suit in favour of the respondent husband. Hence, this appeal by the wife.

6. Learned Counsel for the appellant / wife would submit that case under S.498 - A of IPC is pending adjudication, therefore, there is sufficient ground for wife to stay apart. He further submits that even the case under the Domestic Violence Act is also pending which would go to show that reason for not in the company of the wife with the husband as she was forced to stay away. He further submits that an application under S.125 of Cr.P.C. is also being filed for which huge arrears still remains. He further submits that as per law laid down by the Supreme Court in the matter of Justice K.S. Puttaswamy (Retd.) and another v. Union of India and others (2017) 10 SCC 1 : (AIR 2017 SC 4161), that the personal choice and privacy of a person is required to be protected and as an essential facet of dignity of human being. He submits that if the wife is being subjected to torture she cannot be forced under S.9 to join the company of the husband and she has all the right of privacy to protect her to refrain to stay away from the company of the husband. Therefore, the order under S.9 of the Hindu Marriage Act for restitution of conjugal rights is required to be set aside.

7. Per contra, learned Counsel for the respondent husband would submit that without any valid reason the wife withdrew the c