SHYAMSUNDER VISHNOI Vs. SMT. JYOTI

JUDGEMENT

(1.) The appellant has challenged the order dated 31.10.2014 passed by learned Judge, Family Court, Bhilwara in Civil Misc. Case No.298/2013, whereby the application preferred under section 13(1A)(ii) of the Hindu Marriage Act, 1955 was dismissed.

(2.) In nutshell facts necessary for adjudication of present appeal are that the appellant entered into wedlock with respondent Smt. Jyoti on 02.05.1999 at Neemach (MP). The marriage was solemnized as per the Hindu Rites and Customs. After marriage the couple stayed at Bhilwara till 17.11.2001. The respondent Smt. Jyoti preferred an application under section 9 of the Hindu Marriage Act, 1955 in the year 2004 which was decided by Additional District Judge, Manasa Camp Neemach (MP) vide order dated 15.02.2006. The order dated 15.02.2006 was not enforced for a period of four years and therefore, a petition under section 13 (1A) (ii) of the Hindu Marriage Act, 1955 was preferred by the present appellant stating therein that despite best efforts made by the husband appellant, the decree for restitution of conjugal rights dated 15.02.2006 could not be executed. He further stated that he was always ready and willing to keep Smt. Jyoti with him but for no fault of him, Smt. Jyoti is not coming and staying in her matrimonial home.

(3.) On the present application being preferred, a reply was filed countering the statement made by the appellant and Smt. Jyoti rebutting the averments made in the application stated that the appellant was never inclined to keep her in the matrimonial home and was not willing to implement and execute the decree passed under section 9 of the Hindu Marriage Act, 1955. She stated that she was maltreated and was given beatings in the matrimonial home by the husband. She gave birth to two children but after two deliveries both did not survive and due to death of two children, she was not in the fittest of her mental and physical health. She was not taken care of by her husband and in laws. She stated that in the year 2002, the appellant preferred an application for divorce which was rejected on 25.10.2004 by the District Judge, Bhilwara. Against the same, an appeal being D.B.Civil Misc. Appeal No.1407/2005 was preferred before this court and the same was rejected on 12.02.2008. Therefore, prior to passing of the decree dated 15.02.2006 under section 9 and after passing of the decree, the appellant was continuously prosecuting the case for divorce which conclusively goes to show that there was no intention on the part of the appellant to execute the decree passed under section 9 of the Hindu Marriage Act.