SUDHEER BAHADUR MORYA Vs. SMT. BHARTI

JUDGEMENT

(1.) Since the judgment challenged in these two appeals is one and the same, both the appeals are taken up together for final disposal by this common and one judgment. Both the appeals are filed against vise versa by the parties, having been aggrieved by a judgment and decree dated 29th September, 2009 given in Case No. 11A/07 (HMA), by the Principal Judge of the Family Court, Gwalior, dismissing claim of the wife preferred under Section 9 of the Act for restitution of her conjugal rights vis--vis counter claim preferred by the husband on other side for dissolution of marriage under Section 13 of the Act.

(2.) The facts leading to the present case may be summarised as under:-

(3.) By filing written-statement, respondent/defendant denied all the allegations contained in the petition. In counter-claim, appellant asserted that in year 1997 after the matrimonial disputes arising between the couple, the respondent-husband filed a petition for divorce and Civil Suit No. 31-A/1997 was registered. During pendency of the case on 26th May 1997, the parties entered into compromise and consented to live with each other. Subsequently, thereafter the defendant filed another petition under Section 13 of the Act for divorce which was registered as Civil Suit No. 191-A 2000, on the ground of cruelty against his wife, but the prayer for divorce was disallowed. Against the said judgment and decree, he preferred an appeal (First Appeal No. 234/2001) which too, was dismissed by the judgment and decree dated 25th November 2005 of this court. After two years of dismissal of the petition of divorce filed by the respondent-husband, the present petition under Section 9 of the Act for restitution of conjugal rights was filed by the appellant-wife. The defendant by filing counter-claim submitted that the appellant was unable to procreate a child and was suffering from some bodied disabilities which proved the fact, therefore, it was prayed that under the provisions contained in section 5(ii) (b) and in section 12 (1) (b) of the Act, a decree for dissolution/nullification of marriage may be passed in his favour.