Durgesh Bhati S/o Gamma Ram Bhati vs Rekha D/o Durgaram

To assail the validity of the judgment and decree dated

01.02.2017 passed by the Family Court, Pali in Civil Misc. Case

No.373/13, this appeal as per Section 19 of the Family Courts Act,

1984 is before us.

In brief, factual matrix of the case is that the appellant

entered into a wedlock with the respondent on 27.06.2004 as per

Hindu customs and rights. Out of the wedlock aforesaid, the

couple was blessed with a son on 12.04.2005. While undergoing

process of delivery of child, the respondent was at her parental

house but after birth of the male child no effort was made by the

appellant or any of his family member to call her back to

matrimonial home. Ultimately on 02.02.2006 she went to the

residence of the appellant but on 17.02.2006, as per the

respondent, she was ousted from the house and, therefore, she

had no option but to return to her parents.

The appellant then preferred an application as per Section 9

of the Hindu Marriage Act, 1955 which was ultimately came to be

dismissed being withdrawn on arrival of some compromise

between the parties.

The present applicant (respondent wife) then preferred an

application under Section 9 of the Hindu Marriage Act, 1955 for

restitution of conjugal rights as the appellant was not consuming

the marriage and was also not keeping her with him.

The Family Court after examining the entire record available

on record arrived at the conclusion that the appellant had no

reasonable cause for not performing the conjugal rights vested

with the respondent.

In appeal, the only argument advanced by learned counsel

for the appellant is that the Family Court did not adhere the

principles of natural justices as much as no opportunity was given

to the appellant to adduce the evidence to establish a reasonable

cause for not performing the conjugal rights and even that as a

matter of fact, the respondent-applicant herself was willingly

residing at her parental house.

From perusal of the order-sheets of the learned trial Court

and the record available, we do not find any merit with the

argument advanced.

The application under Section 9 of the Act of 1955 was presented by the respondent-applicant and the same was

registered on 07.04.2012. After service of notice, the appellant-

respondent filed a written statement on 14.12.2012 and then an

issue was framed.

The trial Court also arranged the conciliation on different

dates but of no consequence. The statement of the respondent-

applicant was recorded by the trial Court and an opportunity to

cross examine her was accorded to the appellant on 16.04.2016.

The appellant in quite specific term refused to cross-examine the

respondent-applicant and also did not choose to produce any

evidence to establish his case.

On basis of specific stand taken by the appellant-respondent,

the Family Court closed the evidence and fixed the matter for

hearing. During the course of hearing too, the Family Court made

several efforts to settle the matter between the parties through

mediation as well as by conciliation, but of no consequence.

The record specially the order dated 16.04.2016 is sufficient

to arrive at the conclusion that opportunity was extended to the

appellant to defend himself and also to establish that the

respondent-applicant erroneously claimed the right to consume

conjugal rights, as she herself by her own acts refused to

consume the same.

In view of whatever stated above, the appeal is bereft of

merit, hence dismissed.