Rahul Soor vs Smt. Kirti Soor

Hon''ble Dr. I.M. Quddusi, J.—This appeal has been filed against the impugned judgment and decree dated 11.03.2011 passed by learned Principal Judge, Family Court, Durg (CG) in Civil Suit No. 131-A/2010 dismissing the petition filed by the appellant/husband against the respondent/wife u/s 9 of Hindu Marriage Act, 1869 (for short ''the Act'') for restitution of conjugal rights. The facts of the case, in brief, are that the appellant/husband and the respondent/wife were married on 10.10.2008 according to Hindu rights and customs at Bageshwar Sansthan, Akola Maharashtra evidenced by photographs and CDs. On account of unwillingness of the parents of the respondent/wife, both the parties were separated. The appellant/husband has filed a petition u/s 9 of the Hindu Marriage Act against the respondent/wife for restitution of conjugal rights on 16.06.2009.

The Court below after hearing the parties in the matter and considering the material available on record, dismissed the petition of the appellant/husband herein on the ground that he has not been able to prove the allegations made against the respondent/wife in the petition filed u/s 9 of the Hindu Marriage Act.

We have heard learned counsel for the parties, perused the record of Claims Tribunal as well as the impugned judgment.

Before proceeding further, we found that the appellant has not been given adequate opportunity to produce evidence in support of his case. In para-15 of the impugned judgment, the following observation has been made by the Court below:--

The above portion of the impugned judgment shows that an adverse inference has been drawn against the appellant/husband for non production of the witnesses namely Amol Gajanan Deshmukh and Purushottam Kailash Ingale. The order sheet dated 4.10.2010 shows that P.F. was filed to summon these witnesses and the expenses of the witnesses were also deposited but the evidence was closed. The order sheet dated 4.10.2010 is reproduced as under:--

Learned Principal Judge, Family Court opined in the above quoted order that there was no necessity to produce the witnesses. If the witnesses were not turning up, bailable warrant could have been issued against them and if even then they did not turn up to compel their appearance, non-bailable warrant could have been issued but the mentioning in the judgment that the production of the witnesses was not necessary on one hand and the plaintiff/appellant has not produced those two witnesses on the other is contrary to each other and therefore, we are of the opinion that since the appellant/husband has not been given adequate opportunity to produce the evidence, the matter should be remanded back to the Principal Judge, Family Court, Durg for providing adequate opportunity to him for producing evidence.

Therefore, in view of above, we are of the opinion that the matter requires reconsideration at the end of the Court below and accordingly, we allow this appeal in part, set aside the impugned judgment along with the findings given therein and remit the matter back to the Family Court, Durg. The appellant/husband shall be provided an opportunity to produce the evidence and the respondent/wife shall also be provided an opportunity to rebut the same and thereafter, decision shall be taken afresh on the basis of the evidence available on record.

It is made clear that the finding of the Court below which has been set aside by this Court would not be binding upon the Principal Judge, Family Court, Durg and a fresh finding may be given on the basis of the evidence available on record.

Needless to mention that the parties shall be allowed to amend the pleadings, adduce further evidence, file documents or get the documents verified etc., and thereafter the decision shall be taken afresh. The parties shall appear before the Family court on 13th of June, 2012. The records of the Tribunal shall be sent back forthwith. No order as to costs. It is made clear that this Court has not expressed any opinion on merits of the case and the Court below would be at liberty to decide the same strictly in accordance with law.