HINDU MARRIAGE ACT = RESTITUTION OF CONJUGAL RIGHTS - not a sincere and honest effort, but was only a make-belief attempt.= Grant of a decree for restitution of conjugal rights, as long as the marriage between the parties is subsisting; cannot be treated as extraordinary. On the other hand, any spouse to the marriage is entitled to seek such a relief. However, if the party, who is seeking such a relief itself has created a situation, for the other spouse, to leave the matrimonial home, the matter needs a close scrutiny. In the instant case, the appellant stated that she had to leave the matrimonial home, on account of the circumstances created by the respondent. She did not express any disinclination to join the respondent, in case privacy is provided, and some factors, which are coming in the way; are taken care of. The Family Court decreed the O.P., by observing that the appellant is under obligation to join the respondent. The dispute between the parties, in an O.P., filed under Section 9 of the Act, can be resolved mostly by ascertaining their respective views. Oral and documentary evidence may virtually become secondary, in this regard. To get to the root of the matter, this Court directed the appearance of the parties. The appellant stated that she is willing to join the respondent, and she is finding it difficult to live in the house of her parents, together with the child. She did not insist on compliance with any conditions. The respondent, however, flatly refused to accept the appellant, without stating any specific reason. He did not plead any factors, that occurred between the date of the decree, and the date on which, he appeared before this Court. It only shows that the very filing of the O.P., by the respondent, was not a sincere and honest effort, but was only a make-belief attempt. Courts cannot extend their helping hand to such parties. The appeal is accordingly allowed, and the order under appeal is set aside.

Published in http://judis.nic.in/judis_andhra/filename=9831 DIVISION BENCHE

THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY AND THE HON'BLE SRI JUSTICE B.N. RAO NALLA              

F.C.A.No.164 of 2013

08-04-2013

P. Lavanya            

P. Dinesh Rao
               
Counsel for the appellant:  Sri S. Sridhar

Counsel for the Respondent:  Sri G. Ravichandran

<GIST:

>HEAD NOTE:  

?Cases referred

JUDGMENT: (Per the Hon'ble Sri Justice L. Narasimha Reddy)

 The petitioner is the wife of the respondent.  Their marriage was solemnized on
18-11-2005.  They were also blessed with a child.

However, on account of
differences between them, they started living separately.  
While the respondent is living at Secunderabad,
the appellant is living at the place of her parents' in Hubli, of Karnataka
State.

The respondent filed O.P.No.175 of 2008 in the Family Court, Secunderabad, under
Section 9 of the Hindu Marriage Act, 1955 (for short 'the Act'), for restitution
of conjugal rights.  
He pleaded that the appellant left his company without any
basis, and as long as the marriage is subsisting, he is entitled to have the
company of the appellant.  The nature of dispute, that arose between them, was
also described.

The appellant filed a counter, opposing the O.P.  She denied all the allegations
made by the respondent.  She has also stated that the respondent harassed her in
several respects, and that she was forced to leave the house of the respondent,
under inevitable circumstances.  
The Family Court decreed the O.P., through its order dated 26-07-2011. 
The appellant challenges the same.
It is pleaded that
the Family Court did not take into account,
the fact that the OP filed by the respondent was deceptive
in nature and he did not even indicate the place, where the appellant must join him. 
 It is further stated that the respondent could not provide for the basic
amenities and necessities, that are essential for the couple to lead a family
life.

Heard the learned counsel for the appellant and learned counsel for the
respondent.

The marriage between the parties is not disputed.
The respondent deposed as PW-
1.  Though there was no dispute as to the existence of marriage, or the birth of
a child, he filed, as many as 45 exhibits, which are mostly in the form of train
tickets and cancellation thereof; and some photographs.  The appellant deposed
as RW-1, and she did not file any documents.

Grant of a decree for restitution of conjugal rights, as long as the marriage between the parties is subsisting; cannot be treated as extraordinary.
On the
other hand, any spouse to the marriage is entitled to seek such a relief.
However, if the party, who is seeking such a relief itself has created a situation, for the other spouse, to leave the matrimonial home, the matter needs a close scrutiny.
In the instant case, the appellant stated that
she had to leave the matrimonial
home, on account of the circumstances created by the respondent.  
She did not
express any disinclination to join the respondent, in case privacy is provided, and some factors, which are coming in the way; are taken care of.

The Family Court decreed the O.P., by observing that the appellant is under
obligation to join the respondent.

The dispute between the parties, in an O.P., filed under Section 9 of the Act,
can be resolved mostly by ascertaining their respective views.
Oral and
documentary evidence may virtually become secondary, in this regard.
To get to
the root of the matter, this Court directed the appearance of the parties.  
The
appellant stated that she is willing to join the respondent, and she is finding it difficult to live in the house of her parents, together with the child.  
She did not insist on compliance with any conditions.
The respondent, however, flatly refused to accept the appellant, without stating any specific reason. 
 He did not plead any factors, that occurred between the
date of the decree, and the date on which, he appeared before this Court.  
It only shows that the very filing of the O.P., by the respondent, was not a sincere and honest effort, but was only a
make-belief attempt.  Courts cannot extend their helping hand to such parties.
The appeal is accordingly allowed, and the order under appeal is set aside.

The miscellaneous petition filed in this appeal shall also stand disposed of.
There shall be no order as to costs.


________________________  
L. NARASIMHA REDDY, J.    
_______________________  
B.N. RAO NALLA, J.
Dt.08-04-2013