JUDGMENT : Bhati, J. This civil misc. appeal under Section 19 of the Family Courts Act, 1984 read with Section 28 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act') has been preferred against the judgment and decree dated 09.10.2013 passed by learned Judge, Family Court, Rajsamand in Civil Misc. Case No.57/2012, whereby the learned court below has allowed the application filed by the respondent under Section 9 of the Act. 2. Brief facts of the case, as noticed by this Court, are that the respondent (applicant) preferred a petition for restitution of conjugal rights against the appellant (non-applicant) on the ground that the marriage between them, which was solemnized forty years ago and out of the said wedlock, two children were born, has been disturbed due to the cruel behaviour of the appellant towards the respondent. It was alleged by the respondent that she has been ousted from the house of the appellant and is residing at her parental house for last 6-7 years. The respondent also alleged in the application filed under Section 9 of the Act that the appellant was having adulterous relationship and should be compelled to restore her conjugal rights. 3. The appellant however, has taken a stand that he had taken customary divorce from the respondent, and since there was no surviving relationship between both the parties, therefore, the application under Section 9 of the Act could not be maintained. The appellant also submitted that the respondent by her voluntary conduct had decided to live apart from the appellant. 4. Learned counsel for the appellant stated that as per Section 29(2) of the Act, the customary divorce was valid, and accordingly, both the parties were divorced for last about twenty six years, and thus, the application under Section 9 of the Act is not maintainable. 5. The learned court below framed two issues. Firstly, as to whether the appellant had deprived the respondent of her conjugal rights and thus, the respondent was entitled for the decree of restitution of conjugal rights. The second issue was relief. 6. The respondent had appeared as a witness to support her case. The appellant had also appeared as a witness, along with four other witnesses, namely NAW-2 Ramlal, NAW-3 Dali Chand, NAW-4 Laxmi Chand and NAW-5 Pokhar. The second issue was relief. 6. The respondent had appeared as a witness to support her case. The appellant had also appeared as a witness, along with four other witnesses, namely NAW-2 Ramlal, NAW-3 Dali Chand, NAW-4 Laxmi Chand and NAW-5 Pokhar. The learned court below decided issue No.1 in favour of the respondent holding that the respondent had apparently denied any customary divorce or any other agreement regarding their separation. The respondent clearly denied the divorce in any form. The learned court below has held that if the divorce as per the customs and usages had taken place, it ought to have been proved that such customs and usages were prevalent amongst the community of the parties. The learned court below therefore, concluded that once the respondent has been forcefully ousted from the house of the appellant, then it was established that she was being deprived of her conjugal rights by the appellant. In such circumstances, the learned court below ordered the decree for restitution of conjugal rights under Section 9 of the Act in favour of the respondent. 7. Learned counsel for the appellant stated that in light of the customary divorce, the decree cannot be sustained in the eye of law and the process of law is being abused by the respondent only with the purpose of harassing the appellant. 8. Learned counsel for the respondent however stated that since the customary divorce was not proved by the appellant, therefore, the only defence taken, which was of customary divorce, is not sustainable in the eye of law. 9. After hearing the learned counsel for the parties and perusing the record of the case, we are of the opinion that the sole defence taken by the appellant was that the marriage had been annulled on account of customary divorce taken place twenty six years ago, and therefore, at this stage, any application under Section 9 of the Act cannot be maintained by the respondent. 10. It is clear from the record as well as the reasoned findings of the learned court below that the customary divorce could not be proved by the appellant. The appellant further failed to prove that there was any such customs and usages prevailing in their community so as to entitle the appellant to take the benefit of such customary divorce, which otherwise would not be not lawful. The appellant further failed to prove that there was any such customs and usages prevailing in their community so as to entitle the appellant to take the benefit of such customary divorce, which otherwise would not be not lawful. It is an admitted position by the appellant that he had got married with the respondent forty years ago and two children were born out of the wedlock between the parties. 11. In light of the aforesaid discussion, the impugned order of the learned court below does not require any interference by this Court. 12. In the result, the present appeal fails and the same is hereby dismissed.