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2017 DIGILAW 1675 (RAJ)

Shailendra Kumar v. Leena Lashkar

2017-07-27

AJAY RASTOGI, ASHOK KUMAR GAUR

body2017
JUDGMENT Ajay Rastogi, J. - Instant civil misc. appeal is directed against the order passed by ld. Family Court, Ajmer on an application filed by the applicant/appellant for restitution of conjugal rights under section 9 of the Hindu Marriage Act, 1955, which came to be rejected vide order dated 08.08.2008. 2. The applicant/appellant in his application filed for restitution of conjugal rights under section 9 of the Hindu Marriage Act has stated that his marriage with the respondent lady was solemnized on 08.12.2006 as per the customs of Arya Samaj and she left her matrimonial home on 20.01.2007 and since she failed to carry out the matrimonial obligations, this application came to be filed at his instance on 12.03.2007 for restitution of conjugal rights. 3. Written statement was filed by the respondent Leena Lashkar. She had denied/refuted their marriage as alleged to be solemnized on 08.12.2006. At the same time, it was further stated that she had solemnized her marriage with one Shri Vishnu Kumar, who is resident of Indore on 23.01.2007 as per Hindu rites and customs, and she is leading her married life happily. The said application which was filed at the instance of the appellant for restitution of conjugal rights is based on false and fabricated documents. 4. The learned Family Court on the basis of pleadings of the parties framed four issues for adjudication. We consider it appropriate to quote all the four issues on which the matter was deliberated by the learned Family Court, Ajmer: 1. Whether the non-applicant has deserted the applicant without any just and reasonable cause and has deprived of conjugal rights ? 2. Whether as per written statement no marriage ever took place between the applicant and the non-applicant and the applicant happens to be brother to the non-applicant in relation. If so its effect upon the petition ? 3. Whether as per written statement the marriage of the non-applicant was solemnised on 23.1.07 with Vishnu Kumar of Indore as per Hindu rites and customs ? If so its effect upon the petition ? 4. Whether the applicant is entitled to a decree of restitution of conjugal rights against the non-applicant ?" 5. 3. Whether as per written statement the marriage of the non-applicant was solemnised on 23.1.07 with Vishnu Kumar of Indore as per Hindu rites and customs ? If so its effect upon the petition ? 4. Whether the applicant is entitled to a decree of restitution of conjugal rights against the non-applicant ?" 5. Both the parties have led evidence in support of their respective claims, which was duly appreciated by the learned Family Court and a finding has been recorded that there was no such marriage as alleged being solemnized on 08.12.2006. At the same time, she was able to establish that her marriage was later on solemnized with Vishnu Kumar on 23.01.2007 much before the application for restitution of conjugal rights was filed by the appellant on 12.03.2007. It was further observed by the learned Family Court that the appellant who is claiming to be her alleged husband, is none other than their family member of a prohibited degree in which such marriage could not be solemnized prohibited under Section 5(iv) of the Hindu Marriage Act and on the basis of material on record, there appears no reason for restitution of conjugal rights as prayed. More so, their marriage itself as alleged by the appellant could not have been established being solemnized on 08.12.2006 and decided all the issues against the appellant. 6. We have heard the counsel for the parties and also gone through the judgment impugned of the learned Family Court and so also the evidence which has come on record and on re-appreciation of the evidence, we are satisfied that the finding which has been recorded by the learned Family Court needs no further interference being supported by cogent evidence on record. 7. Consequently, the appeal is devoid of merit and accordingly dismissed.