IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE VISHAL DHAGAT &

HON'BLE SMT. JUSTICE ANURADHA SHUKLA

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ON THE 25 OF SEPTEMBER, 2025 FIRST APPEAL No. 781 of 2016 SMT. SWATI SEN Versus VIVEK SEN Appearance:

Ms. Malti Dadariya - Advocate for the appellant.

Shri Sanjiv Kumar Mishra - Advocate for the respondent.

JUDGEMENT Per: Justice Vishal Dhagat Appellant has preferred this appeal under Section 19(1) of Family Courts Act read with Section 28 of Hindu Marriage Act, 1955 challenging judgment and decree dated 27.11.2014 passed in Civil Suit No. 37-A/2014. By said judgment and decree, suit filed by respondent was decreed and restitution of conjugal rights was ordered.

2. Counsel appearing for appellant submitted that appellant was married with respondent on 21.05.2011 according to Hindu rites and rituals. Respondent subjected appellant to cruelty and demanded dowry from her. She was mentally tortured therefore, she decided to live separately. Respondent with malafide intention had filed petition under Section 9 of Hindu Marriage Act, 1955 before Family Court, Shahdol to frustrate application filed by appellant under Section 125 of Cr.P.C. Respondent made no attempt to bring back appellant after passing of decree of restitution of conjugal rights. It is submitted that husband Vivek Sen was mentally sick and depressed prior to marriage and said fact was not disclosed to appellant and her parents. There was frequent torture, beating, and demand of dowry from appellant by respondent and his family members. Appellant stated that an amount of Rs.4 Lac was given to respondent in dowry and marriage expenses were also borne by family members of appellant. All household articles were gifted. Respondent used to doubt character of appellant and made allegation of her illicit relationship with other persons. It is submitted that due to said reason appellant was forced to live in her paternal house. Appellant has not deserted the respondent. There was sufficient cause for not living with respondent. Trial Court had committed an error of law in allowing petition for restitution of conjugal rights. In these circumstances, counsel appearing for appellant prays for setting aside of judgment and decree dated 27.11.2014 passed in Civil Suit No. 37-A/2014 or as an alternative Court may pass orders that decree of restitution of conjugal rights will not have any effect on claim of maintenance or permanent alimony of appellant.

3. Respondent had filed petition under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal right. Appellant and respondent were married on 21.05.2011. After their marriage, appellant lived along with respondent for about 11 months. She got pregnant and requested respondent to take her to her paternal home as said place is better suited for her care and medical attention. Doctor at her paternal home-Durg is known to her and, therefore, she will have regular and better medical attention. Respondent took appellant to her paternal house and thereafter, she remained there. Proper care of appellant was not taken, therefore, she was aborted. Respondent tried to bring her back in October, 2012 but she refused to come. Appellant along with family members made another attempt on 08.12.2013 but she refused to come to matrimonial home. On the contrary, she threatened them to implicate in police case.

4. Heard the counsel for the parties.

5. After considering the evidence adduced by the parties and judgment and decree, it is found that appellant did not lodge any FIR or filed any complaint regarding demand of dowry and harassment. Appellant failed to make any pleading in written statement regarding giving of Rs.4 Lac to respondent. Appellant also failed to examine the witnesses namely Sanjay and brother-in-law Bhagwat Prasad Sen with whom illicit relationship of appellant was alleged. Witnesses produced by appellant could not be relied upon as they gave hearsay evidence. Dr. Joel who is said to have examine