Madhya Pradesh High Court
Smt. Barkha vs Radheshyam on 18 January, 2022
Author: Chief Justice
1
IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
BEFORE
HON'BLE SHRI JUSTICE RAVI MALIMATH,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 18th OF JANUARY, 2022
FIRST APPEAL No. 611 of 2021
Between:-
SMT. BARKHA W/O SHRI RADHESHYAM JAT ,
AGED ABOUT 27 YEARS, OCCUPATION:
HOUSEWIFE GRAM DIGOD TEH. BAGLI AT
PRESENT- GRAM JIYAGAON, TEH.
KHATEGAON (MADHYA PRADESH)
.....APPELLANT
(BY SHRI SHRI VIKAS YADAV, ADVOCATE )
AND
RADHESHYAM S/O DAYARAM JAT , AGED
ABOUT 35 YEARS, OCCUPATION: BANK
MANAGER GRAM DIGNOD TEH. BAGLI DIST.
DEWAS AT PRESENT I.D.F.C. BANK, T.I MALL
KE SAMNE, TANIKSH SHOWROOM KE UPER
M.G. ROAD (MADHYA PRADESH)
.....RESPONDENTS
(RESPONDENT'S COUNSEL ABSENT )
(Heard through Video Conferencing)
Thi s appeal coming for orders on this day, Shri Justice Pranay
Verma, passed the following:
ORDER
01. By this appeal preferred under Section 28 of the Hindu Marriage
Act, 1955 the applicant/appellant has prayed for setting aside judgment and
decree dated 31-01-2020 passed in Hindu Marriage Case No. 11/2018 by which
as per her decree for judicial separation has been granted. Further prayer has
been made for passing of a decree for restitution of conjugal rights in her
favour.
02. The present non-applicant/respondent had filed a petition under
Section 13(1) of the Act, 1955 before the Court below for grant of decree of
divorce in his favour which was registered as Hindu Marriage Case No.
Signature Not Verified
SAN
01/2019. By judgment and decree dated 31-01-2020 the petition was partly
Digitally signed by RASHMI
PRASHANT
Date: 2022.01.22 14:35:16 IST
allowed and instead of granting a decree for divorce, a decree for judicial
separation was passed. Being aggrieved by the decree as aforesaid the present
respondent preferred First Appeal No. 300/2020 before this Court which was
dismissed as withdrawn by order dated 02-12-2021.
03. The present applicant/appellant had filed an application under
Section 9 of the Act, 1955 before the Court below registered as Hindu Marriage
Case No.11/2018 for a decree of restitution of conjugal rights in her favour. By
judgment and decree dated 31-01-2020 the same was dismissed by the Court
below. In this appeal the appellant has sought to challenge the decree dated 31-
01-2020 passed in Case No. 01/2019 whereby decree for judicial separation has
been passed and has also sought to challenge the decree dated 31-01-2020
passed in Case No. 11/2018 whereby her application for restitution of conjugal
rights has been dismissed. Prayer has been made for setting aside the decree of
judicial separation and for passing a decree for restitution of conjugal rights.
04. Alongwith the present memo of appeal the appellant has only
filed the judgment and decree dated 31-01-2020 passed in Case No. 11/2018
dismissing her application under Section 9 of the Act, 1955. The judgment and
decree passed in Case No. 01/2018 granting decree for judicial separation has
not been filed by her nor has prayer been made in the relief clause for setting
aside the judgment and decree passed in Case No.01/2018.
05. In our opinion the appeal praying for setting aside the judgment
and decree for judicial separation without specifically challenging the said
judgment and decree and by filing a certified copy of the same is not
maintainable. As the relief claimed for by the appellant in this appeal is for
setting aside the decree for judicial separation and then to pass a decree of
restitution of conjugal rights, the same cannot be entertained as the decree for
judicial separation has itself not been challenged and its certified copy has not
been filed.
06. The appellant has mistakenly prayed that the judgment and
decree dated 31-01-2020 passed in Case No. 11/2018 granting decree for
judicial separation be set-aside whereas by that judgment and decree her
Signature Not Verified
application for restitution of conjugal rights was dismissed. In any case, if the
SAN
Digitally signed by RASHMI
PRASHANT
Date: 2022.01.22 14:35:16 IST
appellant wishes to challenge two separate judgments and decree passed in two
separate cases, even though the same may be between the same parties, she will
be required to prefer two separate appeals against them and a single appeal
annexing therewith only one judgment and decree but praying for setting aside
both the judgment and decree would not be maintainable.
07. Between the parties there are two judgments and decree one is for
judicial separation and the other is regarding refusal to grant conjugal rights. As
the appellant has not challenged the judgment and decree whereby judicial
separation was granted which has consequently attained finality, she has no right
to plead or claim a decree for restitution of conjugal rights for which reason her
claim is liable to be rejected.
08. Thus for all the aforesaid reasons, the present appeal preferred
by the appellant fails and is hereby dismissed.
Certified copy as per rules.
(RAVI MALIMATH) (PRANAY VERMA)
CHIEF JUSTICE JUDGE
rashmi
Signature Not Verified
SAN
Digitally signed by RASHMI
PRASHANT
Date: 2022.01.22 14:35:16 IST
