BHOLANATH NANDE Vs. SMT. SARJU NANDE

JUDGEMENT

(1.) Appellant/plaintiff has preferred this appeal under section 19 (2) of the Family Courts Act, 1984 to assail the judgment and decree passed by the Trial Court dismissing his suit for restitution of conjugal rights under section 9 of the Hindu Marriage Act, 1955 (henceforth 'the Act, 1955').

(2.) Indisputably, the marriage between the parties was solemnized at Village Karrahan, District Raigarh on 2.4.2006, however, on account of dispute between the husband and wife, the respondent went back to her parental house on 7.4.2007. She lodged an FIR against the present appellant on 2.5.2007 alleging commission of cruelty in connection with demand of dowry as also infliction of physical cruelty by assaulting her while she stayed in her matrimonial house. It is also not in dispute that in the criminal case initiated against the appellant, the Trial Magistrate has convicted him for the offences under sections 498-A and 323, I.P.C. by judgment and decree dated 29.7.2011 in Criminal Case No. 259/2007.

(3.) After his conviction in the criminal case, the appellant preferred the present suit on 28.5.2012 on the pleadings inter alia that the respondent wife refused to perform her marital and conjugal duties without any reasonable cause, therefore, a decree for restitution of conjugal rights deserves to be granted. The respondent contested the suit on the averment that the appellant was behaving with her in a cruel manner and is therefore himself responsible for creating the situation wherein the respondent was compelled to leave his company, therefore, decree for restitution of conjugal rights need not be allowed. It was also stated in the written statement that the appellant used to physically assault the respondent in state of intoxication and this has become his everyday habit, therefore, there is threat to her life.