ALPABEN HITESHBHAI JOSHI Vs. HITESHBHAI PRAHLADBHAI JOSHI

JUDGEMENT

(1.) The present Second Appeal is filed by the Appellant being aggrieved with the impugned judgment and order in Regular Civil Appeal No. 19 of 2015 by the learned Additional District Judge, Amreli dated 4.7.2016 confirming the judgment and order in Hindu Marriage Petition No. 11 of 2013 by the learned Additional Senior Civil Judge, Amreli dated 18.6.2015 posing the substantial questions of law as follows:

(2.) The background of the facts briefly summarized is that the Hindu Marriage Petition No. 11 of 2013 came to be filed by the Respondent husband under Section 9 of the Hindu Marriage Act, 1955 (hereinafter referred to as "the Act") for restitution of conjugal rights and that after the marriage, the Appellant wife deserted without sufficient cause. It also submitted that the husband agreed for living separately and he was separated from the family. The letters by the husband have not been placed on record by the Appellant wife. The compromise was also arrived at and they started living separately in a rented house. The Appellant / Original Respondent in HMP 11/2013 - wife is educated having Sanad to practice as an Advocate. She was also having a job as a teacher in school for which the Petitioner Husband would leave her at the school. When she was pregnant, the husband used to take care as stated by her. Thereafter, when she was at the parental house, the husband - Respondent herein by letter suggested to take her back, but she was not willing and as the separation remained, the husband filed the Petition under Section 9 of the Act for restitution of conjugal rights.

(3.) The court below on appreciation of material and evidence granted the decree of the restitution of conjugal rights appreciating the aspect of matrimonial law that once the spouse is entitled to the society and comfort of the other spouse and where either spouse has abandoned or withdrawn from the society of the other without reasonable execuse or just cause, the court should grant a decree for restitution of conjugal rights. In spite of this decree passed in HMP 11/2013, the Appellant wife did not join the husband and preferred an Appeal being Regular Civil Appeal No. 19 of 2013 before the District Court. The District Court also on appreciation of material and evidence dismissed the Appeal which has led to the present Second Appeal posing the questions of law as stated above.