ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)

1. This Appeal under Section 19 of the Family Courts Act, 1984 (for short, the ‘Act 1984’) is at the instance of the original defendant-wife, questioning the legality and validity of the order passed by the Family Court at Palanpur dated 7th July 2021 in the Family Suit No.47 of 2019 instituted by the respondent-husband for restitution of conjugal rights whereby the Family Court allowed the suit instituted by the husband and directed the appellant- wife herein to go back to her matrimonial home and perform her marital obligations.

2. The facts giving rise to this Appeal may be summarised as under :

2.1 The parties before us are Muslims. The ‘Nikah’ between the parties was performed on 25th May 2010 at the village Kanodar, Taluka Palanpur, District Banaskantha. In the wedlock, a son named Kabir was born on 2nd July 2015.

2.2 It appears that the appellant-wife took up a Government job as a Staff Nurse at the Thara Village Referral Hospital (CHC). Having regard to the nature of her duties, she was required to stay at the Thara Village Referral Hospital. It appears that in April 2017, the appellant-wife got transferred to the Palanpur Civil Hospital. The appellant-wife, while residing at Kanodar with her husband and in-laws, used to travel to Palanpur for work.

2.3 It is the case of the respondent-husband that his wife left the matrimonial home along with their minor son on 20th July 2017 without any lawful ground and further even without informing anyone. Many attempts were made to persuade the wife to come back to her matrimonial home with the intervention of the family members and other members of the community but such efforts failed. The husband also issued a legal notice dated 22nd July 2019 to his wife, however, the wife failed to respond to such notice.

2.4 In such circumstances referred to above, the respondent-husband instituted the Family Suit No.47 of 2019 in the Family Court at Palanpur, District Banaskantha, invoking Section 282 of the Mohammaden Law for the restitution of the conjugal rights.

3. Having regard to the pleadings of the parties, the Family Court framed the following issues vide Exh.11; “(1) Whether the plaintiff husband proves that he is the legally wedded husband of the defendant wife?

(2) Whether the plaintiff husband proves that the defendant wife has deserted him from the society without any reasonable cause as alleged in the petition?

(3) Whether the plaintiff husband proves that defendant wife has no legal cause to stay separate from the plaintiff?

(4) Whether the plaintiff husband proves that he is entitled to get the decree for restitution of conjugal rights?

(5) What order and decree?”

4. The aforesaid issued came to be answered as under;

“(1) In the afÏrmative (2) In the afÏrmative (3) In the afÏrmative (4) In the afÏrmative (5) As per the final order.”

5. The oral evidence of the plaintiff is at Exh.15. The plaintiff also examined his father, namely, Ali Mohammed Polara as his witness vide Exh.25. The plaintiff also examined one Miyajibhai Vajirbhai Polara as one of his witnesses at Exh.26.

6. The defendant wife led her oral evidence vide Exh.29. She also examined her father, namely, Vajirbhai Miyajibhai Ami as one of her witnesses vide Exh.32.

7. Upon appreciation of oral as well as documentary evidence on record, the Family Court thought fit to allow the suit and passed a decree for restitution of conjugal rights in favour of the husband. Some of the observations made by the court below are as under;

“10. In the present suit, plaintiff has deposed vide Ex. 15 and other two witnesses have been examined on behalf of plaintiff vide Ex. 25 and 26. On going through the deposition of plaintiff, he has narrated the facts as per his suit. In the cross examination conducted by the defendant, he admits that his relatives are residing at Australia and America and he was also planning to go to Austrailia. It is also admitted that the defendant was studying at t