1 F.A. No.656/2005
HIGH COURT OF MADHYA PRADESH AT JABALPUR
First Appeal No.656/2005
Smt. Santoshi Belwanshi
Present : Hon’ble Shri Justice S.K. Gangele, Judge
Hon’ble Smt. Justice Anjuli Palo, Judge
Shri Sanjay Sharma, learned counsel for the appellant.
None present for the respondent.
Whether approved for reporting (Yes/No)
Per : Smt. Anjuli Palo, J.:-
This appeal has been filed by the appellant-wife against the
judgment and decree dated 13.05.2005 passed by Additional
District Judge, Lakhnadaun, District Seoni in C.S. No.14-A/04
whereby the application filed by the respondent-husband under
Section 9 of the Hindu Marriage Act for restitution of conjugal rights
has been allowed.
2. It is not in dispute that the appellant and respondent are
husband and wife. Their marriage was solemnized on 09.05.1997
according to Hindu religion and rites. They have a daughter and a
son. Since 20.02.2004, they are living separately.
3. In brief, the case of the respondent is that the appellant went
to her maternal home to meet her relatives, but she did not return
2 F.A. No.656/2005
back. Thereafter, the appellant-wife refused to live together with the
respondent-husband. After so many efforts, the respondent-
husband failed to bring her to the matrimonial house. Therefore,
respondent-husband filed a case under Section 9 of the Hindu
Marriage Act for restitution of conjugal rights against the appellant-
wife. The appellant-wife denied the allegations made by her
husband and submitted that the respondent/husband used to beat
her for demand of dowry. Then she filed an application under
Section 125 of Cr.P.C. against him before the Court of Judicial
Magistrate First Class, Balaghat. Hence, the respondent-husband
filed the said application.
4. Learned trial Court considered the evidence of both the
parties and found that the appellant was residing separately from
the respondent-husband without any proper reason. Therefore, a
decree under Section 9 of the Hindu Marriage Act for restitution of
conjugal rights has been passed against the appellant.
5. The appellant challenged the aforesaid findings on the
grounds that learned Court below ought to have considered that
there is sufficient, reasonable and plausible cause with the appellant
to live separately because her life may be endangered at the hands
of the respondent. The respondent used to beat her in cruel manner
due to suspicion of her character. Appellant filed an application
under Section 125 of Cr.P.C against the respondent and to counter
the case just to save himself, respondent filed the application under
3 F.A. No.656/2005
Section 9 of the Hindu Marriage Act with an ulterior motive. It
deserves to be dismissed.
6. We have heard learned counsel for the appellant.
7. The case is pending since 2005. So many opportunities were
granted in favour of the parties to arguing the matter. Record of the
case indicates that the respondent is represented by his counsel. On
15.03.2016, it was informed that the respondent has contracted
second marriage and is now living with his second wife. Therefore,
it was directed to bring the documents on record along with
affidavit of the appellant and it was also directed that appellant and
respondent remain present before this Court on 26.04.2016, but the
direction was not complied by the respondent. Therefore, on
26.04.2016, case was fixed for final hearing. It seems that by the
passage of time, respondent has lost interest in prosecuting the
case, hence, the matter is considered on its merit.
8. In compliance of the order dated 15.03.2016, the appellant
filed the copy of order-sheet dated 22.07.2009 of Court of C.J.M.,
Balaghat. Istgasa put up by the Police Station Kotwali, Balaghat
against the respondent for offence under Section 494/34 of the IPC
with the copy of application under Section 163 of Cr.P.C. filed by
the appellant against the respondent along with her affidavit dated
15.03.2016, which was unchallenged.
9. The enquiry report submitted by the Police Station Kotwali,
Balaghat established that the respondent performed second
marriage on 12.01.2009 with Sharda Bai. Sharda Bai was residing
4 F.A. No.656/2005
with the respondent/husband as his wife. In the absence of the
counter affidavit and reply from the respondent side, the aforesaid
documents cannot be ignored.
10. The second illegal marriage of the husband itself is a proper
ground to refuse to live with the husband.
11. Learned trial Court presumed that in the relationship of
appellant and respondent role of brother-in-law of the appellant is
very important. The trial Court has also found that the appellant
was residing with her brother-in-law and, therefore, the respondent
did not like it. Therefore, decree of restitution of conjugal rights has
been granted in favour of the respondent.
12. On the other hand, the appellant submitted that the
respondent took a contract at Bamhanwada and was stayed there
for about 2-3 months. He did not come back to his home. He was in
the habit of beating the appellant regularly. He also ignored his
family and threatened her to perform second marriage. Therefore,
she was residing with her brother and brother-in-law for sometime.
She also deposed that she received a notice from her
husband/respondent to come back to her matrimonial house. Then
she replied and informed that if the respondent himself would come
to take her then, she will return back to her matrimonial home. We
do not find that the respondent has made any effort from his side.
13. The respondent admitted that he did not proceed against
brother-in-law of the appellant with regard to displeasure of the
respondent about staying of the appellant with her brother-in-law.
5 F.A. No.656/2005
He stated in his chief-examination that the appellant went to
Balaghat (Place of Rajendra her brother-in-law) because her mother
was serious and admitted in the hospital at Balaghat. It appears
that due to some confusion with regard to character of appellant,
he teased his wife without any sufficient reason. The respondent
has also performed second marriage with another lady Sharada Bai,
therefore, the appellant cannot be compelled to reside with her
husband and performed her conjugal duties towards the
14. We are of the considered view that the trial Court has
wrongly granted the decree of restitution of conjugal rights under
Section 9 of the Hindu Marriage Act in favour of the respondent.
Hence, appeal filed by the appellant is allowed. The impugned order
and decree is set aside.
15. No order as to costs.
(S.K. GANGELE) (SMT. ANJULI PALO)
Digitally signed by RAJESH
Date: 2018.02.08 17:58:32 +05’30’