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Judgment
Appellant-wife is before us in appeal preferred against judgment dated 16th July, 2019 of the Family Court, decreeing restitution on petition filed by respondent-husband. Mr. Jalli, learned advocate appears on behalf of appellant-wife but none appears on behalf of respondent-husband though he had entered appearance through learned advocates. Order sheet bears several orders made in giving opportunity for respondent-husband to be represented/ appear. In the circumstances, granting further adjournment would be injustice to appellant-wife, who wants to prosecute the appeal.
Mr. Jalli submits, his client is not opposed to reconciliation. However, it cannot and must not be on direction of the Family Court by impugned judgment, wherein the Court found neither of the parties could prove their allegation against the other. Respondent-husband was not able to prove but his client laid cogent evidence to show dowry demands having had been made and inhuman torture on her, causing her to leave the matrimonial home with the minor son. On query from Court Mr. Jalli submits, respondent-husband has made no effort to even contact the son. He, however reiterates, the marriage can be salvaged.
We reproduce below paragraph-8 from impugned judgment.
“8. It is not disputed that, the marriage between the parties were solemnized on 01.02.2008 and they led a conjugal life for a span of more than seven years. It is learnt that, in the course of their martial life the couple developed bitterness, emotional gap and mistrust between them and their marital life entered into a rough weather, owing to dissension cropped up between them on several reasons. The couple blessed with a male child on 25.01.2010. While the petitioner blamed the ugly and odd behaviour and attitude of his wife and in-laws for causing disruption in his marital life, at the same time the respondent pointed out the factors like demand of extra dowry followed by inhuman torture to her and ultimate desertion. The fact remains that, the parties failed to place any short of positive evidence to prove their respective stands.”
Also reproduced below is section 9 from Hindu Marriage Act, 1955.
“9. Restitution of conjugal right.— When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district Court, for restitution of conjugal rights and the Court, on being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.”
Since respondent-husband had petitioned for restitution, it appears that in spite of the Family Court holding the parties could not prove their respective allegations but having drawn impression they could be reconciled, appellant-wife was directed to join society of respondent-husband. Appellant-wife being aggrieved thereby speaks of a situation where neither party wants to be the one to make first move. In the circumstances and where the provision for restitution gives discretion to the Court to decree of restitution of conjugal rights, accordingly, we in exercise of our appellate power direct the parties to get together. Impugned judgment is accordingly modified.
Appellant-wife will take steps for drawing up and completing the appellate decree and thereupon communicate same to respondent-husband directly as well as through learned advocate, as she may be advised. Parties will be at liberty to seek execution.
The Appeal is disposed of. The decree be drawn up expeditiously.
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