Radha Devi Vs. Santosh Kumar Gupta @ Bhola Babu - Court Judgment

SooperKanoon Citationsooperkanoon.com/1151769
CourtPatna High Court
Decided OnApr-11-2014
Case NumberMiscellaneous Appeal No. 741 of 2009
JudgeNAVIN SINHA & VIKASH JAIN
AppellantRadha Devi
RespondentSantosh Kumar Gupta @ Bhola Babu
Excerpt:
navin sinha, j. the present appeal arises from order dated 30.08.2006 passed by the principal judge, family court, at bhagalpur dismissing marriage case no. 48 of 2005, filed under section 9 of the hindu marriage act (hereinafter called the act). the parties were married on 20.06.1997. a female child was born from the wedlock. the respondent filed matrimonial case no. 17 of 2005 for annulment of the marriage on the ground that the appellant suffered from unsoundness of mind and consent had been obtained for marriage by suppression. the appellant also filed marriage case no. 48 of 2005 for restitution of conjugal rights under section 9 of the act. both suits were decided by the principal judge, family court at bhagalpur though separately. matrimonial case no. 17 of 2005 filed by the respondent for divorce was dismissed on 02.01.2006 after perusing the report of the director, rinpas, kanke in letter no. 6843 dated 24.12.2005 that the appellant was not suffering from any psychiatric ailment. admittedly no appeal has been filed by the respondent. the suit under section 9 of the act filed by the appellant has also been dismissed, concluding that the respondent had sufficient cause for living separate from the appellant. learned counsel for the appellant submitted that if the suit for divorce had been dismissed earlier and no appeal had been preferred, the suit for restitution of conjugal rights had to be allowed. counsel for the respondent submits that he is not averse to settlement. we have gone through the judgment under appeal and find it difficult to judicially appreciate dismissal of the section 9 application after earlier dismissal of the divorce suit. what would the relationship between the parties then be?. the conclusion in the suit for restitution of conjugal rights that the respondent had sufficient cause for living separate from the appellant is incongruous and incompatible with the merit consideration in the order. any conduct of the father-in-law was wholly irrelevant to deny restitution of conjugal right to the appellant. in our opinion, if the matrimonial suit for divorce was dismissed quite obviously the parties were required to live together as man and wife for which purpose the application for restitution of conjugal rights had but to be allowed. the divorce application had been rejected earlier on 02.01.2006. to reject the application for restitution of conjugal rights later on 30.08.2006, and that too by the same court, cannot be construed as dispensing justice. the order dated 30.08.2006 passed by the principal judge, family court in matrimonial case no. 48 of 2005 dismissing the suit for restitution of conjugal rights is set aside. the matter is remanded to the principal judge, family court at bhagalpur to decide the suit for restitution of conjugal rights afresh within a maximum period of two months from the date of receipt and/or production of a copy of this order. since this order has been passed in presence of the counsel for the parties, there shall be no need for issuance of fresh notice to them and they are both required to voluntary enter appearance on or before the 08th of may, 2014. the appeal is allowed.
Judgment:

Navin Sinha, J.

The present Appeal arises from order dated 30.08.2006 passed by the Principal Judge, Family Court, at Bhagalpur dismissing Marriage Case No. 48 of 2005, filed under Section 9 of the Hindu Marriage Act (hereinafter called the Act).

The parties were married on 20.06.1997. A female child was born from the wedlock. The respondent filed Matrimonial Case No. 17 of 2005 for annulment of the marriage on the ground that the Appellant suffered from unsoundness of mind and consent had been obtained for marriage by suppression. The Appellant also filed Marriage Case No. 48 of 2005 for restitution of conjugal rights under Section 9 of the Act. Both Suits were decided by the Principal Judge, Family Court at Bhagalpur though separately. Matrimonial Case No. 17 of 2005 filed by the respondent for divorce was dismissed on 02.01.2006 after perusing the report of the Director, RINPAS, Kanke in letter no. 6843 dated 24.12.2005 that the Appellant was not suffering from any psychiatric ailment. Admittedly no Appeal has been filed by the respondent.

The Suit under Section 9 of the Act filed by the Appellant has also been dismissed, concluding that the respondent had sufficient cause for living separate from the Appellant.

Learned counsel for the Appellant submitted that if the Suit for divorce had been dismissed earlier and no Appeal had been preferred, the Suit for restitution of conjugal rights had to be allowed.

Counsel for the respondent submits that he is not averse to settlement.

We have gone through the judgment under Appeal and find it difficult to judicially appreciate dismissal of the Section 9 application after earlier dismissal of the divorce suit. What would the relationship between the parties then be?.

The conclusion in the suit for restitution of conjugal rights that the respondent had sufficient cause for living separate from the appellant is incongruous and incompatible with the merit consideration in the order. Any conduct of the father-in-law was wholly irrelevant to deny restitution of conjugal right to the appellant.

In our opinion, if the Matrimonial Suit for divorce was dismissed quite obviously the parties were required to live together as man and wife for which purpose the application for restitution of conjugal rights had but to be allowed. The divorce application had been rejected earlier on 02.01.2006. To reject the application for restitution of conjugal rights later on 30.08.2006, and that too by the same Court, cannot be construed as dispensing justice.

The order dated 30.08.2006 passed by the Principal Judge, Family Court in Matrimonial Case No. 48 of 2005 dismissing the Suit for restitution of conjugal rights is set aside. The matter is remanded to the Principal Judge, Family Court at Bhagalpur to decide the Suit for restitution of conjugal rights afresh within a maximum period of two months from the date of receipt and/or production of a copy of this order.

Since this order has been passed in presence of the counsel for the parties, there shall be no need for issuance of fresh notice to them and they are both required to voluntary enter appearance on or before the 08th of May, 2014.

The Appeal is allowed.