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Rajasthan High Court · body

2016 DIGILAW 1176 (RAJ)

Khuman Lal S/o Shri Puraji Balai v. Kamla W/o Khuman Lal

2016-08-12

NAVIN SINHA, PANKAJ BHANDARI

body2016
ORDER : 1. No one appears for the Respondent despite service of notice. 2. The present appeal arises from order dated 19.07.2014 allowing the application filed by the Respondent for restitution of conjugal rights filed under Section 9 of the Hindu Marriage Act, 1955. 3. We have heard counsel for the parties and in view of the nature of the order proposed we do not consider it proper to deal with the entire facts of the case except to the extent necessary for purposes of the present order so as not to prejudice either of them. 4. No separate application was filed by the Appellant under Section 13(1)(ia) and/or 13(1)(ib) read with Explanation of the Hindu Marriage Act, 1955. In his reply to the application filed by the Respondent under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights. The Appellant pleaded that the Respondent had left the matrimonial home since long. The Family Judge proceeded to frame the following issues:- “(i) Whether the Respondent was entitled to decree for restitution of conjugal rights? (ii) Whether the Respondent had deserted the Appellant for the last 10 years and he was entitled to a decree for divorce on that ground? (iii) Whether the Respondent had acted with cruelty against the Appellant because of which it was not possible for him to live with her?” 5. The grounds on which the application for restitution of conjugal rights will be maintainable and that on which an application for divorce, whether it be desertion or cruelty will be maintainable are completely different. The evidence for the two will have to be led separately and then considered if it is overlapping in parts for a just decision of the case. It is difficult to appreciate how issues with regard to desertion and cruelty were framed by the Family Judge without there being any application by the Appellant under Section 13 of the Hindu Marriage Act, 1955. The proper course for the Family Judge was to require the Appellant to file a separate application on grounds of desertion and cruelty seeking divorce and then hear the application for restitution of conjugal rights and divorce together. The proper course for the Family Judge was to require the Appellant to file a separate application on grounds of desertion and cruelty seeking divorce and then hear the application for restitution of conjugal rights and divorce together. The order under appeal dated 19.07.2014 is held to be unsustainable in its present form when it grants decree for restitution of conjugal rights to the Respondent and rejects the contention of the Appellant that he is entitled to divorce. It virtually prejudges any application for divorce that he may file in accordance with law. 6. The order dated 19.07.2014 is therefore set aside and the matter is remanded to the Family Judge, Rajsamand. The Appellant is granted liberty to file a separate application for divorce. The Family Judge shall then club the present matter under Section 9 of the Hindu Marriage Act, 1955 along with such application for divorce that may be filed by the Appellant under Section 13 of the Hindu Marriage Act, 1955 and hear them together and pass afresh appropriate orders in accordance with law. 7. The appeal is allowed.