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2019 DIGILAW 1908 (RAJ)

Nisha Sharma v. Pawan Kumar

2019-07-05

MOHAMMAD RAFIQ, NARENDRA SINGH DHADDHA

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ORDER : Narendra Singh Dhaddha, J. 1. This appeal has been preferred by the appellant Smt. Nisha Sharma against the order of the learned Family Court, No. 1, Jaipur on 16.9.2014. By this order, the learned Family Court allowed the Matrimonial Application No. 308/2013 filed by Pawan Kumar, respondent herein, against Smt. Nisha Sharma, appellant herein u/s. 9 of the of the Hindu Marriage Act (for short "the Act") for restitution of conjugal rights. 2. Brief facts giving rise to this appeal are that marriage between the parties was solemnized on 26.6.2004 according to Hindu rites and customs at Bundi. Out of their marriage wedlock, one male child was born. After marriage, respondent and appellant were living peacefully. After sometime of marriage, the appellant wife came in the influence of her friend Mamta Choudhary and started misbehaviour with respondent husband and his family members. Appellant wife threatened to implead them in false criminal cases. The appellant wife went to her parental house on her own will on 26.2.2013. When respondent Pawan went to take her back, she refused to go with him and left the respondent without any reasonable cause. 3. The appellant submitted reply to the application and denied its contents. The appellant stated that the respondent and his family members demanded dowry and for that the appellant wife lodged an FIR No. 59/2007 at Police Station, Mahila Thana, South, Jaipur against respondent husband and his family members on 11.6.2007 for the offence under Section 498A, 406 and 323 IPC and challan was also filed against them. After that, compromise was taken place between the parties on the assurance of them not to harass her in future for dowry demand. After sometime of compromise, the respondent and his family members again started misbehaviour with the appellant. The appellant again submitted a report on 18.3.2013 at Police Station, Sadar, Devpura, Bundi. Again, after assurance given by the family members and other relatives of the respondent, they took away the appellant wife with them at her maternal home. Thereafter, again the respondent harassed her and for that the appellant lodged other FIR No. 32/2013 at Police Station Mahila Thana, Sadar Devpura, Bundi, for the offence under Section 498A and 406 IPC and chargesheet was filed against the respondent and his parents for which they are facing trial. Thereafter, again the respondent harassed her and for that the appellant lodged other FIR No. 32/2013 at Police Station Mahila Thana, Sadar Devpura, Bundi, for the offence under Section 498A and 406 IPC and chargesheet was filed against the respondent and his parents for which they are facing trial. The learned Family Court framed the following issues: 1- D;k vizkFkhZ;k us fcuk fdlh ;qfDr;qDr dkj.k ds Loa; dks izkFkhZ ds lkgp;Z ls izR;kg`r dj fy;k gS\ 2- D;k izkFkhZ nkEiR; vf/kdkjks dh iquLFkkZiuk dh fMØh izkIr djus dk vf/kdkjh gS\ 3- vuqrks"kA 4. During trial, respondent was examined himself as PW-1 and appellant was also examined herself as DW-1. 5. Learned Family Court vide its judgment dated 16.9.2014 decided Issues No. 1 and 2 in favour of respondent and passed the decree for restitution of conjugal rights against him. 6. Learned counsel for the appellant submitted that the impugned judgment and decree passed by the learned family Court is perverse, illegal and against the material available on record. The learned Family Court on the sole ground in its judgment, observed that the appellant in her evidence had not clarified for what reason she was beaten. Learned counsel for the appellant also submitted that appellant in her statement clearly stated that for the demand of dowry, the respondent had beaten her. So, she left the house of respondent, it is the reasonable cause for her exclusion. 7. Learned counsel for the appellant also submitted that the learned Family Court had committed serious error in not taking into consideration the reply submitted by the appellant. He also submitted that the Issues were framed on 22.1.2014 and statements of the respondent were recorded ex parte on 13.3.2014. Thereafter, the appellant filed application for setting aside ex parte proceedings. Her reply was taken on record on 28.3.2014. He also submitted that no new Issues were framed on the basis of reply and cross examination of the respondent was done on previously recorded statement. Therefore, it is material illegality. So, he prayed for the matter to be remanded to the learned Family Court for taking of evidence afresh. 8. Learned counsel for the respondent does not opposed for remanding the matter to the learned Family Court for taking of evidence afresh. 9. We have given our thoughtful consideration to the arguments advanced by both the parties and perused the material available on record. 10. 8. Learned counsel for the respondent does not opposed for remanding the matter to the learned Family Court for taking of evidence afresh. 9. We have given our thoughtful consideration to the arguments advanced by both the parties and perused the material available on record. 10. Appellant clearly stated in her written statement that she was harassed for dowry. She also stated that she had beaten several times by the respondent. She had lodged FIRs against the respondent. The learned Family Court in its judgment did not consider the facts mentioned in the written statement. It is also revealed that the learned Family Court had not framed Issues on appellant's reply. After setting aside the ex parte proceedings, the learned Family Court had to take the statement of respondent afresh. In these circumstances, the order of the learned Family Court suffers from illegality and infirmity. So, the impugned order deserves to be quashed and set aside. 11. Therefore, the appeal is allowed. The judgment and order of the learned Family Court is quashed and set aside. The matter is remanded back to the learned Family Court with the direction to take evidence afresh and the matter be decided expeditiously. The parties shall appear before the learned Family Court on 29.7.2019.