Bombay High Court
Santosh Harischandra Reshwal vs Rakhi Santosh Reshwal on 24 February, 2016
Bench: S.V. Gangapurwala
(1) F.C.A. No. 29 of 2014
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
Family Court Appeal No. 29 of 2014
District : Aurangabad
Santosh s/o. Harishchandra Reshwal,
Age : 24 years,
Occupation : Labourer,
R/o. H.No. 6/5/187, Kabirnagar, .. Appellant
Osmanpura, Aurangabad. (Original petitioner)
versus
Rakhi w/o. Santosh Reshwal,
Age : 21 years,
Occupation : Household,
R/o. Khandu Parsote (Purushottam),
M.S.E.B. Colony, Pawar Chal,
Near Bhosale Akhada,
Burudgaon Road, .. Respondent
Ahmednagar. (Original respondent)
.........................
Mr. A.S. Usmanpurkar, Advocate, for the appellant.
Ms. S.L. Awchar, Advocate, for the respondent.
..........................
CORAM : S.V. GANGAPURWALA &
A.M. BADAR, JJ.
DATE : 24TH FEBRUARY 2016
(2) F.C.A. No. 29 of 2014
ORAL JUDGMENT (Per S.V. Gangapurwala, J.) :
1. Mr. Usmanpurkar, the learned Counsel for the appellant,
submits that the appellant had filed an application under Section 9 of the
Hindu Marriage Act 1955, for restitution of conjugal rights. The Family
Court had allowed the said application, however, imposed an onerous
condition i.e. 'If the respondent (wife) insists upon the petitioner
(husband) to reside separately, in that case, the petitioner shall make such
necessary arrangement for their cohabitation and living together at
Aurangabad'. The learned Counsel submits that the present appeal is filed
only to the extent of said condition. According to the learned Counsel for
the appellant, the allegations made by the respondent (wife) as against
father-in-law are baseless. There was no evidence worth the name to
substantiate the same. Even the Court has not given any finding but
criminal case was filed wherein father of the appellant has been acquitted
and a finding has been given in the said criminal case, that accused no.2
therein did not assault the complainant in order to outrage the modesty. It
is a case of clear acquittal. The learned Counsel for the appellant, as such,
submits that Clauses 2, 3 and 4 of the operative part of the order be set
aside.
2. Ms. Awchar, the learned Counsel for the respondent, submits
that the respondent has led evidence before the Family Court thereby
detailing the incident. The Court has considered the said evidence on
record. It was also brought on record that after husband left the house and
sister-in-law left for her education, the father-in-law of the respondent was
alone in the house and the incident was detailed in the evidence. The
(3) F.C.A. No. 29 of 2014
Court after considering the said aspect has rightly passed the order.
3. We have considered the submissions of respective parties.
The Family Court has allowed the application filed by the present
appellant under Section 9 of the Hindu Marriage Act and has directed the
respondent (wife) to join the company of the appellant within two months
from the date of order and discharge the matrimonial obligation towards
the appellant as his wife.
4. The matter was referred to Mediator by this Court. The
learned Mediator has reported that the mediation has failed.
5. Upon perusal of the judgment delivered by the Family Court,
it is manifest that the Family Court has not come to a conclusive finding as
to the acts alleged by the respondent (wife) against father of the appellant
(husband). Clauses 2, 3 and 4 of the operative order could not have been
passed. Respondent (wife) has not challenged the judgment and order
allowing the application under Section 9 of the Hindu Marriage Act and
directing the respondent (wife) to join the company of the appellant
(husband). The husband has challenged only Clauses 2, 3 and 4 of the
operative order.
6. The Family Court could have allowed the application under
Section 9 of the Hindu Marriage Act, in toto, or rejected it, however, could
not have passed such a conditional order, more particularly, when no
conclusive finding has been arrived at by the Family Court.
(4) F.C.A. No. 29 of 2014
7. In the result, the Appeal is allowed.
The operative order in the judgment delivered by the learned
Principal Judge of the Family Court, Aurangabad, in Petition No. A-
169/2009, on 9th March 2011, is hereby modified and following clauses in
the operative order are hereby deleted :─
" If the respondent (wife) still desires and insists
upon the petitioner (husband) to reside separately,
in that case, the petitioner shall make such
necessary arrangement for their cohabitation and
living together at Aurangabad.
This direction is given since the respondent
(wife) has expressed the alleged apprehensive acts of
her father-in-law of taking undue liberty with her by
touching her body, when the respondent was
residing in the matrimonial home for a very short
period immediately after the marriage.
The petitioner, if required shall discharge the
liabilities of his parents' family and shall also
properly discharge his married obligations towards
his wife and to strike the right balance accordingly. "
Save and except aforesaid modification, rest of the judgment and
(5) F.C.A. No. 29 of 2014
order of the Family Court is not disturbed.
8. The Family Court Appeal is disposed of accordingly. No
costs.
( A.M. BADAR ) ( S.V. GANGAPURWALA )
JUDGE JUDGE
................................
puranik / FCA29.14
