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Smt. Asha Mishra Vs. Dhirendra Kumar - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Miscellaneous Appeal No. 91 of 1970
Judge
Reported in1976WLN(UC)373
AppellantSmt. Asha Mishra
RespondentDhirendra Kumar
DispositionAppeal dismissed
Excerpt:
.....1955 - section 9--wife not returning to husband's house inspite of her letters--held, decree for conjugal rights is justified.;(b) hindu marriage act, 1955 - section 28--wife not appearing and exparte decree for conjugal rights parsed against her--no cause shown for absence--held, decree is justified. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained..........9 of the act.2. the respondent moved an application under section 9 of the act for restitution of conjugal rights. it was alleged that the marriage between the parties was solemnized on may 27, 1937. the partied lived together up to the 1st week of april, 1963 and thereafter the appellant left the company of her husband and went to her father's house. the respondent made several efforts to call the appillant to his house, but to no avail. ultimately, the respondent moved this petition which was allowed by the district judge, jaipur city, and a decree for restitution of conjugal, rights was passed against the appellant. it is against this order that the appellant has filed this appeal.3. in the lower court, the respondent raised the objection that the was a minor. an issue was framed to.....
Judgment:

S.N. Modi, J.

1. This is a civil miscellaneous appeal under Section 28 of the Hindu Marriage Ac, 1956 (hereinafter referred to as 'the Act'), against the judgment and decree of the District Judge, Jaipur City, dated March 26, 1970, in proceedings under Section 9 of the Act.

2. The respondent moved an application under Section 9 of the Act for restitution of conjugal rights. It was alleged that the marriage between the parties was solemnized on May 27, 1937. The partied lived together up to the 1st week of April, 1963 and thereafter the appellant left the company of her husband and went to her father's house. The respondent made several efforts to call the appillant to his house, but to no avail. Ultimately, the respondent moved this petition which was allowed by the District Judge, Jaipur City, and a decree for restitution of conjugal, rights was passed against the appellant. It is against this order that the appellant has filed this appeal.

3. In the lower court, the respondent raised the objection that the was a minor. An issue was framed to that effect and it was decided against the appellant on November 4, 1969. The main issue In the case was, whether the appellant, without any reasonable and probable cause. Withdrawn herself from the society of the respondent? The case was fixed for respondent's evidence on January 15, 1970. On this date, an application was moved on behalf of the appellant that in case two days' time was given to the appellant, she would willingly go with the respondent to his house. The case was therefore adjourned to January 21, 1970. The appellant, however, did not put in appearance on the adjourned date. The respondent appeared in the witness-box and stated on oath that the appellant has left the company of the respondent without any reasonable excuse. The respondent also produced three letters of the appellant wherein she promised to return to her husband's house, but in fact she never returned. The conduct of the appellant clearly shows that she docs cot want to live with her husband and there is no reasonable or probable cause for withdrawing herself from the society of the respondent. It appears that ex parte proceeding ere taken against the appellant, who did not produce any evidence in rebuttal. The Learned District Judge placed reliance on the testimony of the respondent and allowed the petition under Section 9 of the Act and granted a decree for restriction of conjugal rights.

4. The learned Counsel for the appellant was not able to show why the appellant did not appear in the court on January 21, 1970. Not only that, the learned Counsel for the appellant was also not able to point out the reasons why the appellant, inspite of her letters, did not return to her marital home. In three circumstances, I am satisfied that the lower court was fully justified in granting a decree in favour of the respondent under Section 9 of the Act.

5. In these circumstances, the appeal fails and it is dismissed. Having regard to the circumstances of the case, the parties are left to bear their own costs throughout.


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