RENU SAXENA Vs. SUNIL SAXENA

JUDGEMENT

(1.) By this appeal filed under Section 28 of the Hindu Marriage Act, 1955, the appellant seeks to challenge the judgment and decree dated 10.9.2003, whereby, the court of learned Additional District Judge, Delhi dismissed the petition filed by the appellant under Section 9 of the Hindu Marriage Act.

(2.) Brief facts of the case relevant for deciding the present appeal are that the appellant was married to the respondent according to Hindu rites and ceremonies on 29.7.1991 at Kalkaji temple, New Delhi which fact is denied by the respondent. Thereafter the respondent left for his native place at Kanpur and after return contacted the appellant but evaded living with her on one pretext or the other. Feeling cheated by the respondent, the appellant preferred to file a petition under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights which vide order dated 10.9.2003 was dismissed by the learned ADJ. Feeling aggrieved with the same, the appellant has preferred the present appeal.

(3.) Assailing the impugned order, counsel for the appellant submits that the learned trial court has failed to appreciate the fact that the appellant and the respondent had married on 29.7.1991 at Kalkaji Temple, New Delhi, according to Hindu rites and ceremonies. Counsel further submits that the said fact of marriage was fully proved by the appellant not only through her own deposition but also through the testimony of PW-4 Mr. Babu Lal, an employee of the temple. Counsel for the appellant further contends that the learned trial court also fell in grave error by taking a view that since the respondent had already remarried therefore discretion under Section 9 should not be exercised in favour of the appellant. Counsel thus contends that simply because the respondent had remarried during the subsistence of his first marriage, the said fact by itself would not create any hurdle to deny relief to the appellant under Section 9 of the Hindu Marriage Act.