Smt. Varsha vs Manish Verma
2022 Latest Caselaw 13328 MP

                                     1



IN THE HIGH COURT OF MADHYA PRADESH
            AT GWALIOR
                           BEFORE
            HON'BLE SHRI JUSTICE RAVI MALIMATH,
                       CHIEF JUSTICE
                             &
            HON'BLE SHRI JUSTICE ANAND PATHAK
                   ON THE 11th OF OCTOBER, 2022

                    FIRST APPEAL No. 194 of 2015

BETWEEN:-
SMT. VARSHA W/O SHRI MANISH VERMA D/O SHRI
SURAJ VERMA, AGED 23 YEARS, OCCUPATION -
UNEMPLOYED, R/O TULSIPURA, BACK SIDE OF
RAILWAY STATION, WARD NO. 6, MORENA (MADHYA
PRADESH)

                                                          .....APPELLANT
(BY SHRI N.K.GUPTA - SENIOR ADVOCATE WITH SHRI S.D.SINGH-
ADVOCATE )

AND
MANISH VERMA S/O SHRI SURESH SHARMA, AGED 26
YEARS, OCCUPATION LABOUR, R/O ATER ROAD,
NEAR K.K.BHATTA, BHIND POLICE STATION DEHAT,
BHIND, DISTRICT BHIND (MADHYA PRADESH)

                                                        .....RESPONDENT
( SHRI J.P.MISHRA - ADVOCATE AND OTHERS - ABSENT )
............................................................................................................
      This appeal coming on for orders this day, Hon'ble Shri Justice
Anand Pathak passed the following:
                               JUDGMENT

Instant First Appeal is filed by the appellant/wife under Section 19 of the Family Court Act, 1984 challenging the judgment dated 04/09/2015

passed by learned Principal Judge, Family Court, Bhind, District Bhind in Case No. 134/2014 (Matrimonial); whereby application under Section 9 of Hindu Marriage Act, 1955 preferred by respondent/husband has been allowed.

2. Precisely stated facts for adjudication are that respondent/husband preferred an application under Section 9 of Hindu Marriage Act, 1955 on 10/07/2014 in which restitution of conjugal rights with present appellant/wife was sought. As per the allegations on 24/2/2013 marriage was solemnized between appellant/wife and respondent/husband and after living some days in married life, she left her husband. She came intermittently 2-3 times to respondent/husband. When dispute erupted between the two within four months of marriage then complaint was made to family members of appellant but on 10/5/2014, uncle of appellant took her back alongwith ornaments. Since she did not return, therefore, this application has been preferred for restitution of conjugal rights.

3. Appellant/wife opposed the prayer and raised allegations against the conduct of her husband (respondent herein), therefore, she left her matrimonial home and started living in her maternal home. She left with no ornaments / Stridhan. All lie with the respondent/husband.

4. It appears from the submissions and record that earlier appellant did not appear before the trial Court on a date so fixed for appearance, therefore, she was declared ex parte and being aggrieved by said order, an application under Order IX Rule 7 read with Section 151 CPC was preferred and same was allowed vide order dated 3/9/2015 and husband was directed to produce evidence on next date i.e. on 4/9/2015. It further appears from record that on 4/9/2015, appellant/wife did not appear again, therefore, on the basis of pleadings and evidence adduced by respondent/husband case was considered

and decree of restitution of conjugal rights was issued directing the appellant/wife to go to her matrimonial home and restitute the married life with respondent/husband. Being aggrieved by the same, this appeal has been preferred by appellant/wife.

5. It is the submission of learned senior counsel for the appellant/wife that trial Court erred in passing the impugned judgment and did not give any breathing time to appellant to appear and adduce evidence and / or to cross- examine the witnesses of respondent. Trial Court erred in passing the impugned judgment and caused illegality.

6. Heard learned senior counsel for the appellant/wife at length and perused the record.

7. This is a case; where, appellant/wife is taking exception to order dated 4/9/2015 passed by Court below; whereby, application of respondent/husband under Section 9 of Hindu Marriage Act for restitution of conjugal rights is being allowed. Perusal of order dated 3/9/2015 reveals that earlier appellant was declared ex parte, therefore, she preferred an application under Order IX Rule 7 read with Section 151 of CPC, which was duly allowed by Court below directing her to remain present on next date i.e. 4/9/2015 and respondent/husband was directed to produce evidence. It appears from the record that she did not appear on next date knowing fully well about the passing of order dated 3/9/2015. Appellant nowhere pleaded that she never had any inkling about passing of said order whereby, her application under Order IX Rule 7 CPC was allowed or she could not appear due to unavoidable reasons. Even otherwise, discussion so made by Court below indicates that no cogent reason was available to the appellant/wife to resist the plea of restitution of conjugal rights as advanced by respondent/husband.

8. No illegality, perversity or arbitrariness has been caused by Court below while passing the impugned order. Cumulatively, after due consideration, no case for interference is made out. Appeal sans merits, is hereby dismissed.

(RAVI MALIMATH) (ANAND PATHAK) CHIEF JUSTICE JUDGE

jps/-

Digitally signed by JAI PRAKASH SOLANKI DN: c=IN, o=HIGH COURT OF MADHYA

JAI PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, postalCode=474001, st=Madhya Pradesh,

PRAKASH 2.5.4.20=287738d30aabaeda9b10cecdf17 9cec865c7633f4cfb9e38ce14fcbb05b952 2a, pseudonym=560BC50AD082B9BE54EE29 0EC8CB2193780D8357,

SOLANKI serialNumber=8D6BC1C9FCE36623D0BD 6B8072A2D8C01433EBD48AE4F609F108 CA8F8DE6B522, cn=JAI PRAKASH SOLANKI Date: 2022.10.18 09:38:34 +05'30'