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Smt. Reena Tuli vs Naveen Tuli on 20 March, 2019

(1)

First Appeal No. 382/2018

HIGH COURT OF MADHYA PRADESH : JABALPUR

First Appeal No. : 382/2018

Parties Name : Smt. Reena Tuli -Versus- Naveen Tuli
Bench Constituted : Hon’ble Shri Justice J.K.Maheshwari
Hon’ble Shri Justice B.K. Shrivastava
Judgment delivered by : Hon’ble Shri Justice J.K.Maheshwari
Approved for reporting : Yes
Counsel for the petitioner : Shri D.S.Baghel, Advocate.
Counsel for the respondent : Shri Siddharth Sharma, Advocate

Law laid down:
➢ The suit seeking restitution of conjugal right cannot be dismissed as not
maintainable merely on denial of the marriage in the written statement. The said
issue is required to be adjudicated after framing the issues and adducing the
evidence by the parties. In case, it is found that the marriage has not been
proved, the restitution may be refused because solemnization of the marriage has
not been proved. But at the initial stage, dismissal of suit as not maintainable
merely because the marriage is denied, is wholly unjustified. The judgment of
Chhattisgarh High Court in the case of Santosh Kumar Pandey Versus Smt.
Ananya Pandey reported in AIR 2013 Chh 95 has not been followed in view of
the decisions of the Supreme Court in the cases of Pallavi Bhardwah Versus
Pratap Chouhan reported in AIR 2012 SC (supp) 441; K.A. Abdul Jaleel
Versus T.A. Shahida reported in (2003) 4 SCC 166.
➢ In a suit for restitution of conjugal right either the husband or the wife may
apply for, if they have withdrawn from the society of each other without
reasonable excuse. On filing a petition in this regard, the District Court or the
Family Court “on being satisfied of the truth of the statements made in the
petition” would not mean the truthfulness of the reason of withdrawal from the
society of each other. The word “statements” indicate plural, however, the
averments essential is that marriage of the spouse inter se may be adjudicated as
per the spirit of Section 9 of the Hindu Marriage Act.
➢ In case, the specific procedure has not been prescribed in the Family
Courts Act to decide the suit as per Section 10, the procedure prescribed in the
Code of Civil Procedure shall be applicable. On denial of the pleading, the
dismissal of the suit without framing the issue and adducing the evidence would
contrary to the procedure as contemplated under Section 10 of the Family Courts
Act.
Significant Paragraph Nos. : 12 to 20

**********
(2)

First Appeal No. 382/2018

HIGH COURT OF MADHYA PRADESH : JABALPUR

Division Bench : Hon’ble Shri Justice J.K.Maheshwari
Hon’ble Shri Justice B.K. Shrivastava
**
First Appeal No. 382/2018
Smt. Reena Tuli
-Versus-
Naveen Tuli
**************
Shri D.S.Baghel, Advocate for the appellant.

Shri Siddharth Sharma, Advocate for the respondent.
**************
JUDGMENT

(20/03/2019)
Per : J.K. Maheshwari, J.

1. This first appeal under Section 19 of the Family Courts Act,

1984 read with Section 28 of the Hindu Marriage Act, 1955

(hereinafter referred to as the HMA) arises out of the judgment and

decree dated 12.1.2018 passed by First Additional Principal Judge,

Family Court, Jabalpur in Hindu Marriage Case No. 336-A/2013 by

which the suit filed by the appellant/wife seeking restitution of

conjugal right has been dismissed as not maintainable in view of the

judgment of Division Bench of Chhattisgarh High Court in the case of

Santosh Kumar Pandey Versus Smt. Ananya Pandey reported in

AIR 2013 Chh 95.

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First Appeal No. 382/2018

2. On perusal of the impugned judgment, it reveal that the factum

of performance of marriage pleaded by the appellant was denied in

the written statement by defendant, however, observed that on having

a denial of performance of marriage, petition under Section 9 of the

HMA is not maintainable as per the judgment in the case of Santosh

Kumar Pandey (supra). Therefore, the Family Court allowing the

application filed by the respondent on 31.7.2014, dismissed the suit

for restitution of conjugal right. While passing the said order, the Court

has also referred the provision of Section 10(3) of the Family Courts

Act whereby the Family Court is not prevented from laying down its

own procedure.

3. Learned counsel appearing for the appellant contends that the

jurisdiction of the Civil Court is conferred to the Family Court in

respect of the suits and proceedings of the nature referred to in the

Explanation of Section 7 (1) of the Family Courts Act and the said

Court would be deemed to be the District Court or subordinate Civil

Court to which jurisdiction of the Family Court is extended. The

Explanation specifies that suits and proceedings between the parties

to a marriage may be brought; for a decree of nullity of marriage or

restitution of conjugal rights or judicial separation or dissolution of

marriage; for a declaration as to the validity of a marriage or as to the

matrimonial status of any person; with respect to the property of the

parties or of either of them; for an order or injunction in circumstances
(4)

First Appeal No. 382/2018

arising out of a marital relationship; for a declaration as to the

legitimacy of any person; for maintenance or in relation to the

guardianship of the person or the custody of, or access to, any minor.

As per Section 8 of the Family Courts Act, after establishment of the

Family Court, the jurisdiction of the District Court or subordinate Civil

Court in respect of any suit or proceeding of the nature referred to in

the Explanation of Section 7(1), has been excluded and given to the

Family Court to the area to which it extends.

4. In such circumstances, if any suit is filed seeking restitution of

conjugal rights either by husband or the wife alleging that they have

withdrawn from the society of other, may approach to the Family

Court and on being satisfied regarding truthfulness of the statements

made in such petition and that there is no legal ground why the

application should not be granted, may decree the restitution of

conjugal right accordingly. Therefore, in a suit for restitution of

conjugal right the existence of marriage is a sine qua non but on

denial of the said marriage, the satisfaction is required to be recorded

regarding truthfulness of the said statements and the legal ground for

grant of such relief, which can be proved by either party. The marriage

may be proved by customs or ceremonies sacraments but mere

denial of the marriage without recording satisfaction to the

truthfulness of the said denial, suit cannot be dismissed. The

judgment of the Chhattisgarh High Court in the case of Santosh
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First Appeal No. 382/2018

Kumar Pandey (supra) may have a persuasive value but it is not

binding upon this Court, therefore, considering the basic provisions of

the Family Courts Act or HMA the impugned judgment passed by the

trial Court may be set aside and the suit may be restored to its file for

decision on merit. In support of the said contention, reliance has been

placed on a judgment of this Court in Pushpalata Versus Hiralal

reported in 1987 (2) MPWN 69 and on a Division Bench judgment of

this Court in F.A. No. 548/2003 (Devendra Kumar Patle Versus

Smt. Manjushri Patle) decided on 3.12.2007. Reliance has also

been placed on the judgments of the Supreme Court in Pallavi

Bhardwah Versus Pratap Chouhan reported in AIR 2012 SC

(supp) 441; K.A. Abdul Jaleel Versus T.A. Shahida reported in

(2003) 4 SCC 166 and Balram Yadav Versus Fulmaniya Yadav

reported in (2016) 3 SCC 308.

5. On the other hand, learned counsel appearing on behalf of the

respondent submits that as per the judgment of Division Bench of

Chhattisgarh High Court which was a part of Madhya Pradesh High

Court, now separated, in the case of Santosh Kumar Pandey

(supra), it is observed that in a suit for restitution of conjugal right, the

factum of marriage must be admitted and the Court has to decide,

whether either party has withdrawn from the society of other without

any reasonable cause or not. The Court further observed that in such

proceeding, the Court cannot decide the issue regarding
(6)

First Appeal No. 382/2018

solemnization of marriage inter se parties, therefore, the said

judgment is binding upon this Court. However, prayer is made to

dismiss the appeal maintaining the impugned judgment.

6. After having heard learned counsel appearing for both the

parties, the moot question arise for consideration is whether in a suit

seeking restitution of conjugal right, as provided in Explanation (a) to

Section 7(1), the marriage inter se parties, if not admitted in the

pleading, is not maintainable and the parties to the suit are required to

take recourse as per Explanation (b) to Section 7(1) of the Family

Courts Act. To advert the arguments for answer to the said question,

provisions of the Family Courts Act dealing with the jurisdiction,

exclusion of jurisdiction to the Civil Court and to confer the said power

to the Family Court, are required to be taken note of.

7. Chapter III, Section 7 of the Family Courts Act confer the

jurisdiction to Family Courts. Section 7 is relevant, therefore, it is

reproduced as under :-

7. Jurisdiction.- (1) Subject to the other provisions
of this Act, a Family Court shall-

(a) have and exercise all the jurisdiction
exercisable by any district court or any subordinate
civil court under any law for the time being in force
in respect of suits and proceedings of the nature
referred to in the explanation; and
(7)

First Appeal No. 382/2018

(b) be deemed, for the purposes of exercising such
jurisdiction under such law, to be a district court or,
as the case may be, such subordinate civil court for
the area to which the jurisdiction of the Family Court
extends.

Explanation – The suits and proceedings refrred to
in this sub-section are suits and proceedings of the
following nature, namely:-

(a) a suit or proceeding between the parties to a
marriage for a decree of nullity of marriage
(declaring the marriage to be null and void or, as
the case may be, annulling the marriage) or
restitution of conjugal rights or judicial separation or
dissolution of marriage;

(b) a suit or proceeding for a declaration as to the
validity of a marriage or as to the matrimonial status
of any person;

(c) a suit or proceeding between the parties to a
marriage with respect to the property of the parties
or of either of them;

(d) a suit or proceeding for an order or injunction in
circumstances arising out of a marital relationship;

(e) a suit or proceeding for a declaration as to the
legitimacy of any person;

(f) a suit or proceeding for maintenance;

(g) a suit or proceeding in relation to the
guardianship of the person or the custody of, or
access to, any minor.

(2) Subject to the other provisions of this Act, a
Family Court shall also have and exercise-

(a) the jurisdiction exercisable by a Magistrate of
the First Class under Chapter IX (relating to order
(8)

First Appeal No. 382/2018

for maintenance of wife, children and parents) of
the Code of Criminal Procedure, 1973 (2 of 1974);
and

(b) such other jurisdiction as may be conferred on it
by any other enactment.

8. On perusal of the aforesaid, it is clear that the Family Court

shall exercise the jurisdiction, which may be exercisable by the

District Court or subordinate Civil Court under any law for the time

being in force in respect of suits and proceedings of the nature

referred to in the Explanation and for the said purpose the Family

Court shall be deemed to be the District Court or subordinate Civil

Court for the area to which the jurisdiction of the Family Court

extends. The Explanation further clarifies that what may be the nature

of the suits or proceeding, which may be brought before the Family

Court. It states “a suit or proceeding between the parties to a

marriage may be brought”; for a decree of nullity of marriage or

restitution of conjugal rights or judicial separation or dissolution of

marriage; for a declaration as to the validity of a marriage or as to the

matrimonial status of any person; with respect to the property of the

parties or of either of them; for an order or injunction in circumstances

arising out of a marital relationship; for a declaration as to the

legitimacy of any person; for maintenance or in relation to the

guardianship of the person or the custody of, or access to, any minor.

As per sub-section (2) of the Section 7, certain jurisdiction of a
(9)

First Appeal No. 382/2018

Magistrate First Class under Chapter IX of the Code of Criminal

Procedure has also been conferred to the Family Court.

9. Section 8 specifies the power of exclusion of jurisdiction in a

pending proceeding to the Family Court, therefore, it is relevant,

however, reproduced as under:-

8. Exclusion of jurisdiction and pending
proceedings.- Where a Family Court has been
established for any area,-

(a) no district court or any subordinate civil court
referred to in sub-section (10 of section 7 shall,
in relation to such area, have or exercise any
jurisdiction in respect of any suit or proceeding of
the nature referred to in the Explanation to that
sub-section;

(b) no magistrate shall, in relation to such area,
have or exercise any jurisdiction or power under
Chapter IX of the Code of Criminal Procedure,
1973 (2 of 1974);

(c) every suit or proceeding of the nature referred
to in the Explanation to sub-section (1) of section
7 and every proceeding under Chapter IX of the
Code of Criminal Proceure, 1973 (2 of 1974),-

(i) which is pending immediately before the
establishment of such Family Court before any
district court or subordinate court referred to in
that sub-section or, as the case may be, before
any magistrate under the said Code; and

(ii) which would have been required to be
instituted or taken before or by such Family Court
if, before the date on which such suit or
proceeding was instituted or taken, this Act had
(10)

First Appeal No. 382/2018

come into force and such Family Court had been
established,

shall stand transferred to such Family Court on
the date on which it is established.

10. As per Section 8, on establishment of the Family Court, the

jurisdiction of the District Court or subordinate Court referred to in

sub-section (1) of Section 7 is excluded to such area, with respect to

suit or proceeding of the nature referred in the Explanation to Section

7(1). Thus on wake of the provisions of the Family Courts Act and in

the light of Section 9 of the Code of Civil Procedure, it is clear the

jurisdiction conferred to the Civil Court would be exercisable, untill by

an enactment, either expressly or impliedly taken away, thus on

exclusion, the Civil Court shall not take cognizance in the

proceedings. As per Section 20, the Family Courts Act, is having

overriding effect inter alia stating that notwithstanding anything

inconsistent with the provisions of the Family Courts Act contained in

any other law after commencement of the Family Courts Act,

therefore, it can safely be concluded that the jurisdiction which was

conferred to the Civil Court entertaining the suit or proceeding of

either of the parties of marriage has been now conferred to the Family

Court on its establishment in the said area and the nature of a suit or

proceeding between the parties to a marriage for a decree sought for

as specified in Explanation (a) to (g) of Section 7(1) of the Family

Courts Act. Hence, as per Explanation (a) of Section 7(1), a suit or
(11)

First Appeal No. 382/2018

proceeding between the parties to a marriage seeking decree of

restitution of conjugal right may be brought before the Family Court by

either party.

11. Section 9 of the HMA deals with the restitution of conjugal right.

The said provision is relevant and required to be referred to answer

the question posed, therefore, it is reproduced as under:-

9. Restitution of conjugal rights.- When either the
husband or the wife has, without reasonable excuse,
withdrawn from the society of the other, the aggrieved
party may apply, by petition to the district court, for
restitution of conjugal rights and the court, on being
satisfied of the truth of the statements made in such
petition and that there is no legal ground why the
application should not be granted, may decree
restitution of conjugal rights accordingly.
Explanation – Where a question arises whether there
has been reasonable excuse for withdrawal from the
society, the burden of proving reasonable excuse shall
be on the person who has withdrawn from the society.

12. Thus on perusal, it is clear that either the husband or the wife

without reasonable excuse if withdraws from the society of other and

whosoever is aggrieved may file a petition to the District Court now

Family Court on its establishment to ask for the relief of restitution of

conjugal right. On receiving the said petition, the Court is required to

satisfy the “truthfulness of the statements made in the petition” and if

the “ground raised has not been proved in lieu of the defence taken

by other side, a decree of restitution of conjugal right may be granted.

Its explanation only clarifies that the burden of proving reasonable
(12)

First Appeal No. 382/2018

excuses taken by either party for withdrawal from the society of other

shall be on such person who has withdrawn from the society. Thus,

either husband or wife, who wish to withdraw from the society of other

must plead for the marriage and the reason of the withdrawal made

by other on which the satisfaction to the truthfulness of the statements

made in such petition is required to be adjudged by the District Court

or by the Family Court. The satisfaction of words “truthfulness of

statements”, indicate the plurality of facts for recording satisfaction to

the truthfulness, therefore, it would include the performance of

marriage, and the grounds of withdrawal from the society of others

and on rebuttal of those allegation, if ground of refusal of restitution is

not available, after adducing evidence by the parties, the Court may

pass the judgment granting decree of restitution of conjugal rights.

13. Hon’ble the Apex Court in the case of Pallavi Bhardwah

(supra) observed that the husband has taken a plea of marriage,

which was rebutted by the wife taking defence that the husband is

already married and having one daughter, who is studying in school.

The trial Court held that since there is no marriage, there can be no

restitution, however, dismissed the suit. On filing an appeal, the High

Court without recording any finding about the validity of the marriage

and its validity was denied by the appellant, give certain directions,

which were not found as per law by the Apex Court, therefore, set

aside the order passed by the High Court. Meaning thereby in a suit
(13)

First Appeal No. 382/2018

for restitution of conjugal right, the existence of marriage on denial,

may be examined within the phrase “satisfaction of truthfulness to the

said statements” along with the ground on which the plaintiff pleaded

withdrawal from the society by the defendant without any reasonable

excuse, and on satisfied, the restitution either may be granted or

refused.

14. The Apex Court in the case of K.A.Abdul Jaleel (supra)

clarified about the jurisdiction of the Family Court under Explanation

(a) of Section 7(1) of the Family Courts Act. The Court observed that

“a suit or proceeding between the parties to a marriage do not mean

the subsisting marriage, if said interpretation is taken note of, it would

lead to miscarriage of justice”. Thus in a suit or proceeding between

the parties to a marriage, the requirement to prove ingredient looking

to the nature of the suit or proceeding may be dealt with by the Family

Court. Mere denial by other side would not lead to a conclusion that a

suit or proceeding between the parties to marriage , which has been

brought, cannot be decided by the Family Court. The Court further

said, the Explanation of Section 7(1) of the Family Courts Act clarifies

the nature of the suit and proceeding to which the jurisdiction can be

exercised by the Family Court. If a suit for restitution of conjugal right

is filed without pleading existence of marriage and the ground, on

which the either party has withdrawn from the society of the other, is

found justified, the restitution may be allowed but mere denial of the
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First Appeal No. 382/2018

marriage would not ip so facto made the suit not maintainable and to

relegate the party to take recourse of Explanation (b) of sub-section

(1) of Section 7. In case marriage has not been proved, the restitution

can be refusal by the Court.

15. It is to observe here that when the party comes to the Court by

filing a suit or proceeding, the statements of fact may be made by the

plaintiff to which the written statement may be filed by the other side.

The said suit and proceeding shall be decided by a procedure

applicable to the Family Court. As per Section 10, subject to the

provisions of the Family Courts Act and the rules, the provision of

Code of Civil Procedure and any other law for the time being in force

shall apply to the suit or proceeding. On denial of the pleading, the

issues be framed and the evidence be recorded, is the procedure

prescribed under the Code of Civil Procedure. In this regard, under

the Family Courts Act, no separate procedure has been prescribed,

therefore, the provision of Code of Civil Procedure would be

applicable in the case.

16. Thus, after pleading of the parties and if either party denies

those pleading, the issues may be formulated and the evidence be

taken by the Court which may be decided after recording satisfaction

to the truthfulness of the statements made by the parties. Mere denial

by the other side regarding marriage, the suit or proceeding filed by

either party cannot be dismissed on the ground of non-maintainability.
(15)

First Appeal No. 382/2018

If the said interpretation is allowed to stand refusing to maintain suit or

grant of decree, it would result into absurdity.

17. The judgment of Santosh Kumar Pandey (supra) of

Chhattisgarh High Court contemplates that the marriage between the

parties must be admitted for a suit of restitution of conjugal right.

Looking to the provisions of Sections 7 and 8 of the Family Courts Act

and Section 9 of the HMA as discussed hereinabove, the observation

of the Court regarding admission of marriage has neither been

specified nor it may be an intention of the legislature. The observation

made by the Court in the said judgment that “Court has to decide that

one party has withdrawn from the society of other without any

reasonable cause, would make the suit or proceeding outside the

purview of Section 9 of the HMA due to denial of existence of

marriage”, do not appear to be a plausible reasoning in view of the

judgments of the Supreme Court as referred hereinabove.

18. A Division Bench of this Court in the case of Devendra Kumar

Patle (supra) in a suit for restitution of conjugal right has upheld the

finding recorded by the trial Court regarding solemnization of the

marriage by the appellant with the defendant and granted restitution

of conjugal right. Similar is the position in a case of Pushplata

(supra). Though the issue of maintainability on denial of marriage was

not dealt with in the aforesaid cases but the factum of marriage was
(16)

First Appeal No. 382/2018

adjudicated on denial in a suit or proceeding fall under Exception (a)

of sub-section (1) of Section 7, which may be for a decree of nullity,

restitution of conjugal right, judicial separation or dissolution of

marriage. The grounds for respective relief may be different but

existence of marriage inter se parties is required to be adjudicated

applying the procedure as contemplated in the Code of Civil

Procedure recognized by Section 10 of the Family Courts Act.

Therefore, we respectfully disagree with the view taken by the

Chhattisgarh High Court in the case of Santosh Kumar Pandey

(supra), which in our opinion, is not based on sound reasoning. It is

required to observe that the view taken by the Chhattisgarh High

Court may have persuasive value but if it is not based on sound

reasoning, this Court is not bound to accept the same and may take

different view.

19. In view of the foregoing discussion in reference to the

judgments of Hon’ble Supreme Court in the case of Pallavi

Bhardwah (supra) and K.A. Abdul Jaleel (supra) and also of this

Court in the case of Devendra Kumar Patle (supra) and Pushplata

(supra), the judgment and decree passed by the trial Court dismissing

the suit as not maintainable relying the judgment of Chhattisgarh High

Court in the case of Santosh Kumar Pandey (supra), is hereby set

aside.

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First Appeal No. 382/2018

20. Accordingly, this appeal succeeds and is hereby allowed. The

trial Court is directed to restore the suit and on framing the issues and

giving opportunity to lead the evidence to the parties the suit be

decided on merit. It is made clear that this Court has not expressed

any opinion regarding solemnization of marriage by the parties.

However, the said issue is required to be decided by the trial Court in

a proceeding for restitution of conjugal right and if found that the

marriage has not been solemnized the suit for restitution of conjugal

right may be rejected.

(J.K. Maheshwari) (B.K. Shrivastava)
Judge Judge

PB

Digitally signed by
PRADYUMNA BARVE
Date: 2019.03.20
18:27:45 +05’30’

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