Jharkhand High Court

Sukesh Kumar Barnwal @ Sukesh Kumar vs Khushbu Kumari on 9 September, 2025

Author: Sujit Narayan Prasad

Bench: Sujit Narayan Prasad

                                                               2025:JHHC:27945-DB




            IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                   F.A. No.10 of 2025

          Sukesh Kumar Barnwal @ Sukesh Kumar, aged about 25 years, son of
          Sri Sudama Lal Barnwal, resident of Piska Nagri, near Check Post, PO:
          Piska Nagri, PS: Nagri, District Ranchi. .... ... Petitioner/Appellant
                                         Versus
         Khushbu Kumari, wife of Sukesh Kumar Barnwal @ Sukesh Kumar,
         daughter of Sri Krishna Lal Barnwal, resident of Irgu Toli, Bagan
         Chowk, P.O GPO, P.S: Sukhdeonagar, District-Ranchi.
...Respondent/Respondent
                                       -------

CORAM:HON'BLEMR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE ARUN KUMARRAI

-------

      For theAppellant             :Ms. Sonal Pandey, Advocate
      For the Respondent           : None
                           ---------

        Order No. 06/Dated:9th September, 2025

1. Neither anyone appears nor any vakalatnama has been filed on behalf of

the respondent in-spite of valid service of notice.

2. The instant appeal under Section 19(1) of the Family Court Act, 1984is

directed against the order/judgment dated 19.08.2024 passed by the

learned Additional Principal Judge, Additional Family Court No.1, Ranchi

in Original Suit No. 304 of 2021, whereby and whereunder, the petition

filed under Section 9 of the Hindu Marriage Act, 1955 against the

respondent for restitution of conjugal right, has been dismissed.

3. The brief facts of the case leading to filing of the petition filed under

Section 9 of the Hindu Marriage Act, 1955 by the appellant/petitioner

needs to be referred herein as under:

The marriage of the appellant/petitioner with the respondent

wife was solemnized at Ranchi on 18.01.2020 as per Hindu rites and

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custom. After marriage, they lived together as husband and wife. In the

month of May, 2020 wife became pregnant and on 24.5.2020 she went to

her parent's house where she gave birth to a male child. The petitioner, on

several occasions, went to his father-in-law's house to bring the

respondent to his house with his child but on one or other pretext she

declined to come back and the petitioner/appellant was also subjected to

harassment and misbehavior by his in-laws. Without any sufficient cause

and reason , the respondent deserted the appellant. Thereafter, Original

Suit No. 304 of 2021 has been filed.

4. The learned Family Judge has called upon the respondent-wife. The wife

has filed written statement and altogether five issues have been framed by

the learned Family Court which are as follows:

     (i)     Whether the suit as framed is maintainable ?


     (ii)    Whether the petitioner has valid cause of action for the suit?

(iii) Whether the respondent wifehas withdrawn herself from the society

of plaintiff without any reasonable excuse or not ?

(iv) Whether the petitioner is taking advantage of his own wrong?

(v) Whether the petitioner is entitled to get the decree of restitution of

conjugal right or not ?

(vi) Whether the petitioner is entitled to get any other relief or reliefs ?

5. The evidences have been laid on behalf of both the parties. Thereafter, the

judgment has been passed dismissing the suit by holding that

plaintiff/husband is not entitled to get relief as claimed.

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6. Against the aforesaid order of refusal of restitution of conjugal right the

present appeal has been filed.

Arguments advanced on behalf of the petitioner/appellant:

7. It has been contended on behalf of the appellant that the issues have not

been decided in proper manner. The learned Family court has also not

considered the depositions and the documents advanced on behalf of the

appellant and, as such, the judgment impugned is liable to be set aside.

8. It has been submitted that the court is failed to appreciate oral and

documentary evidence adduced on behalf of the appellant and thus came

to a wrong conclusion. The court has also not consider that the appellant

has successfully substantiated the allegation that respondent has

withdrawn from his society without any reasonable excuse for a

continuous substantial period /years together.

9. Learned counsel for the appellant, based upon the aforesaid ground, has

submitted that the judgment impugned suffers from perversity, as such,

not sustainable in the eyes of law.

Analysis:

10. This Court has heard the learned counsel for the appellant and had gone

through the findings recorded by the learned Family Judge in the

impugned judgment.

11. The case has been heard at length. The admitted fact herein is that the suit

has been filed under Section 9 of the Hindu Marriage Act, 1955for a

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decree of restitution of conjugal rights wherein, issues have been framed

wherein primarily issue nos.3 and 4 are most relevant.

12. It is evident from impugned order that the evidence has been led on behalf

of both the parties. For ready reference, the evidences led on behalf of the

parties are being referred as under:

(i) PW-3 Sukesh Kumar Barnwal is plaintiff himself. He has stated in

examination-in-chief that his marriage took place with Khushbu

Kumari according to Hindu rites and rituals at Ranchi. He has stated

that after marriage he took his wife at his house on 19.01.2020 and

kept his wife happily in his house. He has stated that defendant

became pregnant in May 2020 and he was keeping her in a good

environment. He has stated that after the defendant

becamepregnant, she was being treated by Dr. Karuna Shahdev at

Baba Hospital. He has stated that there was Vatsavitri Puja on

22.05.2020 and his wife performed it in a good environment and on

his identification photographs of said Puja have been marked "X to

X/4" respectively with objection. He has stated that Holi festival

was on 10.03.2020 and that was celebrated in a good environment

and on his identification the photocopies of Holi festival have been

marked "X/5 to X/7" respectively with objection. He has stated that

birthday of his wife was celebrated with great pomp on 17.02.2020

at his home in Piska Nagri and a cake was also cut and on his

identification the photographs of said birthday party have been

marked "X/8 to X/10 respectively with objection. He has stated that

at the time of Teej festival his wife was at her maternal home where

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he had taken all the items of Teej, new clothes (gown) and all the

puja materials and also gave a smart phone and celebrated the

festival in a good environment and on his identification the

photographs of said festival have been marked "X/11 to X/16"

respectively. He has stated that on 24.05.220 her mother and

brother-in-law started taking his wife from his house but he did not

want to send her considering her health issue but they took her

against his wishes. He has stated that he used to go to his in-laws'

house and gave the necessary things to his wife while taking care of

her health and used to get her shopping from Big-Bazaar, Vishal

Megamart of Ranchi and on his identification the photographs of

said articles which have been given to the defendant have been

marked "X/17 for identification. He has stated that the child was

born in January 2021 where he and his mother had taken the cloths

for defendant and the child, gold locket, child's hand-foot bangles,

sweets and ten thousand rupees in cash and handed over it to the

defendant's mother and had played with the child and on his

identification the photograph of plaintiff with child has been

marked "X/18" with objection for identification. He has stated that

lateron he went several times to bring the defendant to his house but

it was avoided by the defendant's mother, brother and sister by

making excuses. He has stated that he and sardhu went to bring his

wife on 11.04.2021 but the defendant refused to come without any

reason and the entire family members started abusing and they

started beating him and threatened to implicate him in a false case

and refused to send the defendant whose video and CD were

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prepared and, on his identification, it has been marked "X/19" for

identification. He has stated that this suit has been filed to bring the

defendant and he wants that the defendant should be sent with him

and the relationship between husband and wife should be restored.

In his cross examination he has stated that he works as

mechanic and he is helper of his uncle Ashok Kumar Choudhary.

He has stated that after marriage he brought the defendant at the

house of his father situated at Nagri, Ranchi. He has stated that he

has studied up to Class XII. He has stated that defendant became

pregnant in May, 2020 and her pregnancy was not terminated. He

has denied that first abortion of defendant was made on 29.02.2020.

He has stated that in March, April, 2020 again defendant became

pregnant and in May, 2020 he got medical checkup of defendant by

Dr. Karuna Sahdeo. He has stated that he has given smart phone to

his wife which is still with his wife. He has stated that he looked

after his wife whether she lived in her Sasural or her maika and he

also used to give her articles. He has stated that earlier his in-laws

used to give threatening to implicate him in false case u/s 498 IPC

therefore he had prepared video-audio of his in-laws. He has stated

that prior to 11.04.2021 no meeting was held between both the

families.He has stated that he tried a lot to bring his wife from her

maika. He has stated that the defendant was admitted in Sadar

Hospital on 11.01.2021 for delivery of child and information was

given to him regarding birth of child. On being questioned

regarding treatment of his wife by Dr. Malti Sahu on 29.02.2020

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(Ext.1) that as per prescription the first miscarriage of defendant

was made on 29.02.2020 the witness answered that he has no

knowledge about it and he denied that first miscarriage of defendant

was made to torture given by him. He has denied that he along with

his Sardhu had gone to the parental house of the defendant to make

video so that he could file the suit. He has denied that when the

defendant became pregnant second time, at that time he extended

torture to her and sent her to her maika. He has stated that he was

not invited on chhatti of his son. He has denied that he earns good

income and a businessman. He has denied that he has filed this case

on the basis of false facts.

(ii) PW-1, Sarwan Lal Barnwal has fully supported the case of plaintiff

in his examination-in-chief and has stated more or less the similar

version as stated by P.W.3. In his cross examination he has stated

that plaintiff is son of his maternal brother-in-law and he always

used to visit his house and Sukesh has wholesale shop at Pandra and

again he has stated that the said business is of his father. He has

stated that by showing photograph on which "62" is written this

witness has stated that the vehicle does not belong to Sukesh and

again this witness has stated that he does not know who is owner of

vehicle. He has stated that by showing photograph on which "63"

is written that it is photograph of mother and father of the plaintiff

along with two other persons and this witness does not know on

which date and function the said photograph relates to. He has

stated that he does not know what happened in May, 2020. He has

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stated that he was not present in social meeting held between both

the parties. He has denied that he is giving false evidence by taking

money from plaintiff.

(iii) PW-2 Ashok Choudhary has fully supported the case of plaintiff in

his affidavited examination-in-chief and this witness has more or

less stated the similar version as stated by P.W.3.In his cross

examination this witness has stated that Sukesh does electric work

with him. He has stated that he is electrician and Sukesh Barnwal is

his helper. He has stated that he attended marriage of plaintiff and

he met with the family members of plaintiff. He has stated that the

child of defendant was born in January, 2021 at Sadar Hospital and

he visited the house of plaintiff many times after marriage of

plaintiff. He has stated that plaintiff always told him that he has to

take his wife for treatment and her treatment was going on at

Karuna Sahdeo. He has stated that he has no paper or receipt which

show that plaintiff after purchasing articles gave it to defendant and

child. He has stated that he had not given money to plaintiff in

December-January, 2021. He has stated that Sukesh is not his

permanent staff and sometime plaintiff works as helper with him.

13. On the other hand the defendant has examined altogether four witnesses in

support of her case. Out of them Respondent-Witness No.4 Khushboo

Kumari is the defendant herself.

(i) RW-4 Khushboo Kumari (respondent) has stated in her

examination-in-chief that this case was filed by the plaintiff which

is wrong and the plaintiff has filed this case before the court by

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showing wrong facts so that he can harass her mentally. She has

stated that her marriage was solemnized with plaintiff on18.01.2020

according to Hindu rites and rituals and the plaintiff married with

her by making false and fabricated story. She has stated that after

the marriage, she went to her in-laws house and after staying there

properly for two-four days, her in-laws and husband started

harassing her mentally and physically for bringing less dowry and

being the daughter of a poor family. She has stated that she

continued to bear everything silently because she thought that her

relationship with plaintiff would gradually improve but torture and

cruelty upon her started increasing and she became mentally and

physically disturbed. She has stated that meanwhile she became

pregnant and thereafter her husband did not take care of her and he

kept harassing her, he used to abuse her family members and did

not allow her to meet her family members. She has stated that her

in-laws did not provide her food properly and treating her like

animals and they forced her to do all the household work even

during pregnancy and also they did not provide her medicines etc.

She has stated that the plaintiff wanted her to leave him and

gradually she started getting upset. She has stated on 24.05.2020

she came to her father's house with her brother and elder brother-in-

law because she was pregnant, after that no contact was made with

her by the plaintiff. She has stated that many times social meetings

were held with her brother, father and others and still the plaintiff

used to make promises but he did not stand on his promise. She has

stated that meanwhile she was blessed with a son in January 2021

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and since the birth of her son the plaintiff has neither provided her

any kind of support nor expressed any kind of happiness. She has

stated that meanwhile in April 2021 Sukesh Kumar Barnwal and his

brother, without any reason and without giving any information

arrived at her parental home on a motorcycle and started making a

video of her and her family members without any reason the

plaintiff started fighting abusing and behaving rudely. She has

stated that when she raised alarm many people of the locality

gathered and intervened and then life of her and their son could be

saved. She has stated that the plaintiff has illicit relation with many

women and he is a characterless person and considers himself very

rich and arrogant. She has stated that even after that disturbance,

her parents made to understand the plaintiff's middle Sardhu on

whose instructions everything was happening, and insisted that they

would resolve the matter and even after explaining several times

they refused to keep her and to give her respect. She has stated that

her husband never came to see her and suddenly trying to insult her

by filing this case on the basis of false and fabricated facts. She has

stated that she is not ready to live with plaintiff under any

circumstances. She has stated that she does want to go with him as

she deeply saddened by their misbehaviour and have decided to live

an independent life. She has stated that she has filed a separate case

for maintenance. She has stated that plaintiff only wants to

forcefully take away her child with him and he has no interest in

her. She has stated that she had given up hope of living a life after

being physically and mentally tortured by her husband and in-laws.

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She has stated that the defendant tortured her and her health started

deteriorating and she was also given wrong medicines so that she

could not have a child and in this way her abortion was done by the

plaintiff without her consent. She has stated that her husband often

beat her after taking alcohol. She has stated that plaintiff has a

wholesale shop in Pandra Bazar Samiti and he needed more money,

hence he used to demand Rs. 5 lakh as dowry and when his demand

was not fulfilled he used to beat her and pushed her from the stairs

and talk to burn her, due to this her life was in danger and is still in

danger and she is not ready to start her married life with the

plaintiff under any circumstances. She has stated that many times

attempt was made by her parents to resolve the matter by holding

social meetings but plaintiff, his uncle, maternal uncle and his

family members did not give any relief in the matter and even in the

social meeting they abused her and she was insulted. She has stated

that plaintiff has never given her any love and has not respected her.

She has never shared any happiness with him and thus she does not

want to live with him. She has stated that the plaintiff is a drunkard

and also a person of bad character, for this reason she does not want

in live with him. She has stated that the only intention of the

plaintiff through this case is to snatch away her child by any means

and run away which he has done in the past and has failed and for

this reason also she does not want to extend her life with him.

In her cross examination she has stated that this case was

filed to take her at her matrimonial house. She has stated that uncle

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of Sukesh regularly used to visit her house and he convinced her

parents to solemnize her marriage with plaintiff and her parents had

full faith upon uncle of Sukesh. She has stated that after one week

when she went to Sasural after pagphera where she was abused and

assaulted by her husband and in laws for bring less dowry and her

husband used to come home daily in drunken condition. She has

stated that she narrated the entire incident to her family but her in-

laws used to snatch her mobile. She has stated that she has not filed

any case. She has stated that after 1 ¼ months she became pregnant

but miscarriage was done by providing wrong medicine and after

miscarriage again she became pregnant in April-May, 2020. She has

stated that after marriage she came to her maika 2-3 times and at

first time she was sent to her maika on 24.05.2020 and when she

went to her maika on second time then she came to know that she is

pregnant in the year 2020 and she gave birth to a male child on

12.01.2021. She has stated that she has three sisters and all have

married and she along with her one sister live in her maika. She has

stated that on 24.05.2020 her husband sent her to her maika. She

has stared that she is graduate and she is not doing any job. She has

stated that after marriage her husband and in-laws used to torture

her and even they assaulted her during her pregnancy and now she

does not want to live with her husband even in any circumstances.

She has stated that she has not filed any case regarding assault made

by her husband because she was in hope that her marital life will be

settled. She has stated that her marriage was solemnized on

18.01.2020. She has stated that after marriage Sukesh treated her

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like an animal that is why she does not put vermilion of his name.

She has stated that after marriage she had filed dowry harassment

case u/s 498A but she does not remember the number of said case.

She has denied the on 24.05.2020 she left her Sasural along with her

entire ornaments worth Rs.3 lakhs.

(ii) Defendant witness no.1 Arvind Kumar is acquainted with both sides

and in his affidavited examination-in-chief he has stated more or

less the similar version as stated by defendant witness no.4. In his

cross-examination he has stated that this case was filed by Sukesh

Kumar against Khushboo and their marriage was solemnized in the

year 2020 and does not remember the date of their marriage. He has

stated that he does not remember date when defendant went for her

father's house. He has stated that Khushboo has three sisters and her

middle sister and younger sisters live in maika. He has stated that

he resides in front of house of Khushboo. He has stated that middle

sister of Khushboo has also filed a case against her husband which

is pending in the court and he does not know for which matter the

case was filed. He has stated that he never visited the Sasural of

Khushboo. He has stated by showing the photographs mark "X" and

photo no. 9,10,11,12,13,14,15,16 all are not related to torture and it

shows there was love between the parties. He has stated that family

of defendant wants to send the defendant to her Sasural but the

plaintiff does not want to take her.

(iii) Defendant witness no.2 Sanjay Kumar Kushwaha is acquainted

with both sides and in his examination-in-chief he has stated more

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or less the similar version as stated by defendant witness no.4. In

his cross examination he has stated that marriage of plaintiff was

solemnized with defendant on 18.01.2020 at Modi Dharmshala

Upper Bazar and out of their wedlock one son was born in 2021 at

Sadar Hospital. He has stated that his house is situated at distance

of 200 meters from the house of defendant and the house of plaintiff

is situated at distance of 12-13 km from his house. He has stated

that once he has gone to the house of plaintiff and stayed there for

three hours. He has stated that when defendant resided at her

Sasural at that time he had not gone there. He has stated that when

he stayed at the house of plaintiff there was no any fight took place

and no FIR was lodged and when he went to the house of plaintiff

the defendant was at her maika. He has stated that after marriage

defendant went to her Sasural and she lived there about 4-5 months.

He has stated that in his knowledge no FIR was lodged in between

plaintiff and defendant. He has stated that he has no knowledge that

plaintiff had gone to meet with defendant on dated 1st, 2ndand

3rdJanuary. He has stated by showing photographs Mark "X to

X/21" all are of love and good relation and it is not of any quarrel.

(iv) Defendant witness no.3 Kumari Divya in her examination-in-chief

she has stated more or less the similar version as stated by

defendant witness no. 4.

In her cross examination she has stated that she is elder sister of

defendant. She has stated that this case was filed u/s 9 and the

plaintiff firstly filed this case and thereafter her sister filed

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maintenance case. She has stated that marriage of her sister was

solemnized with plaintiff on 18.01.2020 and out of their wedlock

one son was born on 12.01.2021. She has stated that Sukesh has

kept his Phupheri bhabhi and he has illicit relation with her. She has

stated that her husband has deserted her and the case is also pending

in the court between she and her husband.

14. The learned Family Judge has gone into the evidences led on behalf of

the parties as also the submissions made in the pleadings, i.e., plaint and

written statement, has found that the defendant (respondent wife herein)

has able to establish that she is not living in her parental house voluntarily

rather under compulsion of circumstances and she has sufficient reason to

live separately from husband as her limb and life is in danger and at

present there is no chance of their reunion. Accordingly, the learned

Family Judge has dismissed the suit filed by the appellant husband under

Section 9 of the Act 1955 for restitution of conjugal right.

15. In backdrop of the aforesaid factual aspects, it would be apt to discuss the

object and scope of decree of restitution. The object of restitution decree

was to bring about cohabitation between the estranged parties so that they

could live together in the matrimonial home in amity. The leading idea of

Section 9 was to preserve the marriage. For ready reference, Section 9 of

the Hindu Marriage Act is being referred as under:

"9. Restitution of conjugal rights.-- When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal

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ground why the application should not be granted, may decree restitution of conjugal rights accordingly. [Explanation. --Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.]"

16. From perusal of the aforesaid provision, it is evident that if either the

husband or the wife has, without reasonable excuse, withdrawn from the

society of the other, the aggrieved party may apply, before the court

concerned, for restitution of conjugal rights and the court, on being

satisfied of the truth of the statements made in such petition and further

taking into consideration the legal ground that why the application should

not be granted, may decree restitution of conjugal rights accordingly.

17. Further, in explanation part of the said provision, it has been prescribed

that when a question arises, whether there has been "reasonable excuse"

for withdrawal from the society, the burden of proving "reasonable

excuse" shall be on the person who has withdrawn from the society.

18. It needs to refer herein that conjugal rights may be viewed in its proper

perspective by keeping in mind the dictionary meaning of the expression

"Conjugal" wherein the meaning of 'conjugal' as "of or pertaining to

marriage or to husband and wife in their relations to each other" is given

(Shorter Oxford English Dictionary, 3rd Edn. Vol. I page 371).

19. In the Dictionary of English Law, 1959 Edn. at page 453, Earl Jowitt

defines 'conjugal rights' thus:

"The right which husband and wife have to each other's society and marital intercourse. The suit for restitution of conjugal rights is a matrimonial suit, cognizable in the Divorce Court, which is brought whenever either the husband or the wife lives separate from the other

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without any sufficient reason, in which case the court will decree restitution of conjugal rights (Matrimonial Causes Act, 1950, s. 15), but will not enforce it by attachment, substituting however for attachment, if the wife be the petitioner, an order for periodicalpayments by the husband to the wife (s.22). Conjugal rights cannot be enforced by the act of either party, and a husband cannot seize and detain his wife by force (R.V. Jackson [1891] 1 Q.B. 671)".

20. In India, it may be borne in mind that conjugal rights, i.e., right of the

husband or the wife to the society of the other spouse is not merely

creature of the statute, such a right is inherent in the very institution of

marriage itself. Thus, the restitution of conjugal rights is often regarded as

a matrimonial remedy. The remedy of restitution of conjugal rights is a

positive remedy that requires both parties to live together and cohabit.

21. Thus, the requirement of the provisions of restitution of conjugal rights

are as follows:

(i) The withdrawal by the respondent from the society of the petitioner.

(ii) The withdrawal is without any reasonable cause or excuse or lawful ground.

(iii) There should be no other legal ground for refusal of the relief.

(iv) The court should be satisfied about the truth of the statement made in the petition

22. The Hon'ble Apex Court in the case of Suman Singh v. Sanjay Singh,

(2017) 4 SCC 85 has categorically observed that when there is evidence

establishing that it was respondent husband who withdrew from

appellant's company without any reasonable cause, appellant is entitled to

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decree for restitution of conjugal rights. For ready reference the relevant

paragraph is being quoted as under:

"24. In our considered view, as it appears to us from perusal of the evidence that it is the respondent who withdrew from the appellant's company without there being any reasonable cause to do so. Now that we have held on facts that the respondent failed to make out any case of cruelty against the appellant, it is clear to us that it was the respondent who withdrew from the company of the appellant without reasonable cause and not the vice versa.

25. In view of the foregoing discussion, the appeals succeed and are allowed. The impugned judgment [Suman Singh v. Sanjay Singh, 2013 SCC OnLine Del 2138 : (2013) 136 DRJ 107] is set aside. As a result, the petition filed by the respondent (husband) under Section 13(1) of the Act seeking dissolution of marriage is dismissed. As a consequence thereof, the marriage between the parties is held to subsist whereas the petition filed by the appellant against the respondent under Section 9 of the Act seeking restitution of conjugal rights is allowed. A decree for restitution of conjugal rights is, accordingly, passed against the respondent.

26. We hope and trust that the parties would now realise their duties and obligations against each other as also would realise their joint obligations as mother and father towards their grown up daughters. Both should, therefore, give a quiet burial to their past deeds/acts and bitter experiences and start living together and see that their daughters are well settled in their respective lives. Such reunion, we feel, would be in the interest of all family members in the long run and will bring peace, harmony and happiness. We find that the respondent is working as a "Caretaker" in the Government Department (see Para 4 of his petition). He must, therefore, be the "Caretaker" of his own family that being his first obligation and at the same time attend to his government duties to maintain his family."

23. Thus, on the basis of aforesaid settled position of law, it is evident that the

court will grant a decree for restitution of conjugal rights when one spouse

has withdrawn from the other's society without reasonable excuse. This

means if a husband or wife leaves the marital home or refuses to live with

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their spouse without a justifiable reason, the other spouse can file petition

before the court for its remedy. The court, if satisfied with the truth of the

petition and finding no legal barrier, may order the withdrawing spouse to

return and resume cohabitation.

24. In the backdrop of the aforesaid settled position of law, this Court is now

adverting to the material available on record and has revisited the order

impugned.

25. In the instant case it is evident from the testimonies and evidence

available on record that the plaintiff/wife (respondent herein) since

beginning always tried her best to lead happy conjugal life but due to

compelling circumstances, the respondent wife unwillingly had left

matrimonial house. Further, from perusal of the impugned order, it is

evident that the learned Family Judge has also taken into consideration the

aforesaid factual aspect as well as settled proposition of law related to the

restitution of conjugal right, which would be evident from some

paragraphs of the impugned judgment, for ready reference, the relevant

paragraph is being quoted as under:

"17. It appears that plaintiff has filed this suit u/s 9 of Hindu Marriage Act for restitution of conjugal right. It appears that three essential conditions are provided u/s 9 of Hindu Marriage Act for restitution of conjugal right they are;

1. one party must have withdrawn from the society of the other

2. the withdrawn must be without any reasonable cause and

3. the aggrieved party applies for restitution of conjugal right. If these three conditions are fulfilled, then the court may passed decree of restitution of conjugal night to bring co-habitation between estranged party The explanation of section 9 of Hindu Marriage Act read as follow:

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"Where a question arises whether their has been reasonable excuse from the withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.

In the light of above proposition of law, I have perused the evidences and materials on record to see whether plaintiff is entitled for a decree of restitution of conjugal right or whether defendant has reasonable case for withdrawal from the society of plaintiff husband? It appears that admittedly the marriage between the parties was solemnized on 18.01.2020 and both parties ore living separately from 24.05.2020. It is also admitted fact that couple blessed with a male child on 12:01 2021 and defendant along with their child are living in her parental house. It is evident from the evidence adduced on behalf of the plaintiff that on 24.05.2020 against the wish of plaintiff, defendant along with her mother and brother went is her parental house and started living there. Plaintiff and his witnesses have stated that Plaintiff used to go to his matrimonial house to meet with defendant and he also provided all possible facilities to his wife defendant as she was pregnant and on 12.01.2021 defendant gave birth to a male child and on getting information plaintiff along with his mother went there along with gifts, clothes etc, Photograph of Plaintiff with their child in lap is also marked "X/18" for identification. Plaintiff has stated that several times he went to parental house of defendant to bring her back but she procrastinated one way or other and lastly on 11.04.2021 plaintiff along with Sardhu went to parental house of defendant but defendant refused to join the society of Plaintiff without any reason and defendant and her family members also started abusing them and they also threatened to implicate them in false case. Plaintiff has stated that he also prepared video recording of said incident which have been marked "X/19" for identification.

18. On the other hand defendant wife denied the allegation made in the application of conjugal right and has stated that after some days of her marriage plaintiff and his family members started taunting a humiliating her for bringing less dowry and they also started demanding more dowry from the defendant and when their demand was not fulfilled she was subjected to torture and cruelty by the plaintiff and his family members due to which her first pregnancy was miscarriaged. Defendants and her witnesses have stated that again defendant conceived but torture and cruelty continued upon her then under compulsion of circumstances she came to her parental house on 25.04.2020 and on 12.01.2021 she give birth to a male child.

Defendant and her witnesses have stated that during pregnancy of defendant, plaintiff did not take care of her and he also not extended any financial or emotional support to her and even on getting information about the birth of child plaintiff along with his mother came in hospital and stayed there only for few minutes and thereafter went away without giving any expenses towards the birth of child and plaintiff also not attended the Chhathi Ceremony of their child though information was given. Plaintiff has stated that many times family meetings were held to reconcile the matter between the parties but all the times plaintiff refused to keep her and now he filed this case only to snatch the child and he has no concern with defendant and their child. Plaintiff has stated that in the month of April 2021 plaintiff along with their Sarhu (Brother-in-law of defendant) came to her parental house and they abused and assaulted the defendant and their family members and also prepared video recording of that incident in order to humiliate the defendant. Defendant specifically stated that as

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she was not comfortable in her matrimonial house due to domestic issues therefore she does not want to live with her husband.

19. On combined reading of evidence led by both sides and materials available on record it appears that marriage between the parties was solemnized on 18.01.2020 and both parties are living separately since 24.05.2020 meaning thereby both parties lived together hardly for four months. It is evident that relation between the parties is not cordial rather they are in inimical and litigating terms. Though plaintiff has filed some photographs mark "X/4 to X/6" for identification to show that the relation between the parties was cordial and they spent happy moment together but it appears that all photographs have been marked with objection by the defendant and during evidence defendant and her witnesses have categorically stated that defendant was subjected to cruelty and torture at the hands of plaintiff and his family members for bringing less dowry and also for further demand of dowry and defendant has specifically stated that she does not want to live with plaintiff as he was very cruel to her. It is also evident from record that defendant has also filed maintenance case and criminal case against the plaintiff and under such charged circumstances it is practicably impossible for the defendant to lead her conjugal life with plaintiff where both parties levelled allegation and counter allegation against each other and in litigating terms".

26. Thus, from the aforesaid paragraphs of the impugned order it is evident

that the learned Family Court while passing the order impugned has taken

care of the evidence of both the parties and further the learned court has

also taken note of the core of section 9 of the Act 1955. The learned

Family Court after considering all these aspects has categorically observed

that it was practically impossible for the defendant wife to carry her

conjugal life with husband (appellant herein) due to compelling

circumstances and further the defendant wife has sufficient reason to live

separately from the appellant husband.

27. The learned counsel for the appellant/petitioner has argued that since the

learned Family Court has not properly appreciated the evidences available

on record as also has not properly considered the testimony of the

witnesses and has passed the order impugned without taking into

consideration the mandate of the Section 9 of the Hindu Marriage Act

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(1955) and, as such, the impugned judgment suffers from perversity,

hence, not sustainable in the eyes of law.

28. This Court, while appreciating the argument advanced on behalf of the

appellant on the issue of perversity needs to refer herein the interpretation

of the word "perverse" as has been interpreted by the Hon'ble Apex Court,

which means that there is no evidence or erroneous consideration of the

evidence.

29. The Hon'ble Apex Court in Arulvelu and Anr. vs. State [Represented by

the Public Prosecutor] and Anr., (2009) 10 SCC 206 while elaborately

discussing the word perverse has held that it is, no doubt, true that if a

finding of fact is arrived at by ignoring or excluding relevant material or

by taking into consideration irrelevant material or if the finding so

outrageously defies logic as to suffer from the vice of irrationality

incurring the blame of being perverse, then, the finding is rendered infirm

in law. Relevant paragraphs, i.e., paras-24, 25, 26 and 27 of the said

judgment, read as under:

"24. The expression "perverse" has been dealt with in a number of cases. In Gaya Din v. Hanuman Prasad [(2001) 1 SCC 501] this Court observed that the expression "perverse" means that the findings of the subordinate authority are not supported by the evidence brought on record or they are against the law or suffer from the vice of procedural irregularity.

25. In Parry's (Calcutta) Employees' Union v. Parry & Co. Ltd. [AIR 1966 Cal 31] the Court observed that "perverse finding" means a finding which is not only against the weight of evidence but is altogether against the evidence itself. In Triveni Rubber & Plastics v. CCE [1994 Supp (3) SCC 665 : AIR 1994 SC 1341] the Court observed that this is not a case where it can be said that the findings of the authorities are based on no evidence or that they are so perverse that no reasonable person would have arrived at those findings. Pleading.

27. In M.S. Narayanagouda v. Girijamma [AIR 1977 Kant 58] the Court observed that any order made in conscious violation of and law is a perverse order. In Moffett v. Gough [(1878) 1 LR 1r 331] the

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Court observed that a "perverse verdict" may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. In Godfrey v. Godfrey [106 NW 814] the Court defined "perverse" as turned the wrong way, not right; distorted from the right; turned away or deviating from what is right, proper, correct, etc. The expression "perverse" has been defined by various dictionaries in the following manner:

1. Oxford Advanced Learner's Dictionary of Current English, 6th Edn.

"Perverse.--Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable."

2. Longman Dictionary of Contemporary English, International Edn. Perverse.--Deliberately departing from what is normal and reasonable.

3. The New Oxford Dictionary of English, 1998 Edn. Perverse.--Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law.

4. The New Lexicon Webster's Dictionary of the English Language (Deluxe Encyclopedic Edn.) Perverse.--Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or petulant.

5. Stroud's Judicial Dictionary of Words & Phrases, 4th Edn.

"Perverse.--A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence."

30. This Court has already observed in preceding paragraphs that learned

Family Court while passing the order impugned has taken care of the

evidence of both the parties and further the learned court has also taken

note of the settled proposition of law, as such, the contention of the

learned counsel for the petitioner that there is element of perversity in the

impugned order is totally fallacious.

31. This Court, based upon the aforesaid discussions, is of the view that the

appellant has failed to establish the element of perversity in the impugned

judgment as per the discussions made hereinabove, as such, the instant

appeal deserves to be dismissed.

32. Thus, on the basis of the discussions made hereinabove, this Court,

therefore, is of the view that the judgment dated 19.08.2024 passed by the