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2016 DIGILAW 245 (JHR)

Gajala Farheen @ Ghajala Pramin v. Khalil Khan @ Mantu

2016-02-02

AMITAV K.GUPTA, D.N.PATEL

body2016
JUDGMENT : D.N. Patel, J. I.A. No. 4731 of 2014 Present interlocutory application has been preferred under section 5 of the Limitation Act, 1963, for condonation of delay of 715 days in preferring this First Appeal. 2. Having heard counsels of the parties and looking to the reasons stated in the interlocutory application, especially in paragraph No.4, sufficient cause and reasonable explanation has been given for the delay. 3. In view of these facts, we, hereby, condone the delay in preferring this First Appeal. Accordingly, I.A. No. 4731 of 2014 is allowed and disposed of. First Appeal No. 148 of 2014 4. This First Appeal is preferred against order dated 6th July, 2012 passed by the Principal District & Sessions Judge-cum-Principal Judge, Family Court, Lohardaga in M.T.S. No. 10 of 2011 allowing the prayer of the respondent for restitution of conjugal rights. 5. Having heard counsels and on perusal of the facts, it is evident that the marriage of the appellant was solemnized with the respondent in accordance to Hanafi School of Mohameddan law and hence the impugned order has been passed allowing the prayer of the respondent for restitution of conjugal rights u/s 281 of the Mohameddan law. 6. It is admitted that the marriage between the appellant and respondent was solemnized on 11.4.2007 at Ranchi. After Rukhsati the appellant/wife started leading her conjugal life with the respondent at her matrimonial home at Kuru, District Lohardaga. The respondent's case is that after sometime the appellant started throwing tantrums that she could not lead her matrimonial life at Kuru and insisted that the respondent/husband should leave Kuru and reside at Ranchi as 'Ghardamad' and after a month her mother took her to Ranchi on the pretext that she would complete her computer training course of six months and return to her matrimonial home. After six months when the respondent tried to bring her back to her matrimonial home she avoided to return on one pretext or another. The respondent asked his in-laws to make the appellant understand and persuade her to come to the matrimonial home but they did not pay any heed. The appellant/wife tried to pressurise the respondent to settle in Ranchi as 'Ghardamad' which caused differences between them. That a male child was born in 2008 and despite the best efforts made by the respondent the appellant did not resume the conjugal life. The appellant/wife tried to pressurise the respondent to settle in Ranchi as 'Ghardamad' which caused differences between them. That a male child was born in 2008 and despite the best efforts made by the respondent the appellant did not resume the conjugal life. That she had come to the matrimonial home in January, 2009 but again her mother came and took her with assurance that she would return in fifteen days. However, the appellant did not return and when the respondent came to fetch her and bring her back to the matrimonial home she refused to do so and her relatives assaulted the respondent. 7. On the above grounds the matrimonial suit was filed for restitution of conjugal rights which has been decreed by the order impugned herein above. The appellant has assailed the impugned order on the ground that the order for restitution of conjugal rights under Section 281 of the Mohammedan Law has been passed without giving her an opportunity of hearing On perusal of the evidence on record, it is abundantly clear that the Principal Judge, Family Court has observed that Notices were sent to the appellant but she did not appear. Thereafter, the Notice was published in Dainik Jagran on 30.11.2011 but the appellant did not appear where after the case was fixed for ex-parte hearing. 8. The respondent/plaintiff has examined himself as P.W.1 and three witnesses have also been examined who have supported the case of plaintiff/respondent that he is still willing to lead his conjugal life with the appellant/defendant. The evidences have been weighed and analysed by the learned court below in its right perspective and the learned court has rightly held that the respondent/plaintiff as P.W.1 has led cogent evidence that he is still ready to keep the appellant/defendant as his wife with full dignity and honour and this has been supported by the witnesses P.W.s 2, 3 and 4. It is apparent that the trial court on the basis of the evidence on record has decreed the suit for restitution of conjugal rights under Mohammedan Law. Therefore, there is no infirmity or illegality in the impugned order dated 6th July, 2012 in M.T.S. No. 10 of 2011 passed by the learned lower court warranting any interference in this appeal. 9. There is no merit in this First Appeal, accordingly, it stands dismissed without cost. Appeal dismissed.