Jharkhand High Court
Sunita Kumari vs Rajmanish Kumar on 30 October, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
2025:JHHC:32683-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
F.A. No.120 of 2023
Sunita Kumari, aged about 38 years, w/o Rajmanish Kumar, D/o late
Maharaj Kumar, R/o East Basuria, Road No.2, Indira Gandhi Chowk,
Bhuli Nagar, PO and PS: East Basuria, District: Dhanbad, Jharkhand.
.... ... Appellant/Respondent
Versus
Rajmanish Kumar, S/o Vijay Bhushan Prasad, R/o Kurmidih Bazar,
Near Peepal Tree, PO-BS City-10, PS Balidih, Dist. Bokaro,
Jharkhand. ... ... Respondent/Petitioner
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CORAM:HON'BLEMR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE ARUN KUMAR RAI
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For the Appellant :Mr. Soumitra Baroi, Advocate
For the Respondent : Mr. Debarsi Mondal, Advocate
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Order No. 08/Dated:30thOctober, 2025
1. The instant appeal under Section 19(1) of the Family Courts Act, 1984 is directed against the order/judgmentdated 8.5.2023 and the decree dated 12.5.2023 passed by the learned Principal Judge, Family Court, Bokaro in connection with Original Suit No. 111 of 2021, whereby and whereunder, the petition filed by the respondent-husband under Section 9 of the Hindu Marriage Act, 1955 against the appellant-wife for restitution of conjugal rights, has been allowed.
Factual Matrix
2. The brief facts of the case leading to filing of the petition under Section 9 of the Hindu Marriage Act, 1955 by the respondent/petitioner needs to be referred herein which is as under:
The marriage of the respondent/petitioner with the appellant- wife was solemnized on 12.12.2019 as per Hindu rites and customs. After marriage, they lived together as husband and wife. Out of their wedlock, a 1 F.A. No. 120 of 2023 2025:JHHC:32683-DB male child was born on 06.9.2020. It has been alleged that the behavior of the appellant-wife during her stay in her matrimonial house was not good. She used to quarrel on trivial matters and also used to go to her parent's house frequently. She pressurized the respondent-husband to live as gharjamai. When he did not agree, the appellant-wife and her family members threatened him to implicate in a false dowry case. Lastly, on 20.1.2020, she left her matrimonial home taking away her jewelleries including stridhan. Thereafter, on several times, the respondent-husband went to bring her back but he was abused. Thereafter, respondent-husband had filed suit being Original Suit No. 111 of 2021 for restitution of his conjugal right before the Family Court.
3. The learned Family Judge has called upon the appellant-wife. The wife has filed written statement wherein it has been stated that save and except what are expressly admitted in this written statement all the allegations levelled against her are vehemently denied.
4. The Learned Family Court based upon the pleading made by the parties had framed altogether four issues for its deamination which are as follows:
(i) Is the suitmaintainable in its present form ?
(ii) Whether the petitioner has valid cause of action for the suit?
(iii) Whether the petitioner has been able to prove that the respondent has withdrawn herself from the society of the petitioner without any reasonable cause?
(iv) Whether the petitioner is entitled to get the relief as prayed for ? 2 F.A. No. 120 of 2023
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5. The evidences have been laid on behalf of both the parties. Thereafter, the judgment has been passed allowing the suit in favour of petitioner husband and the respondent was directed to join company of her husband/petitioner and lead conjugal life to perform her marital duties/obligations, within one month from the date of the order. The petitioner husband was also directed to keep the respondent/wife and their son with him with full honour and dignity.
6. Being aggrieved and dissatisfied with the aforesaid order, the present appeal has been filed by the appellant-wife.
Arguments advanced on behalf of the Appellant/wife:
7. It has been contended on behalf of the appellant that the judgment passed by the learned court below is grossly perverse, whimsical and incorrect, as such, the same cannot sustain in the eye of law as well on facts, hence, the same is liable to be set aside.
8. It has been submitted that the learned court has failed to consider that the appellant is living separately from the respondent due to cruelty committed upon her by her husband. The learned court below has erroneously decided the issues in favour of the respondent and has given no proper findings with regard to reason for withdrawal of the appellant from the society of her husband.
9. The learned Court below has failed to appreciate that the respondent husband does not do any work and has no income and he had lied to the appellant that he is Loco Pilot in Railway and, in these circumstances, he cannot take care of the appellant and the child.
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10. It has further been submitted that the court has also failed to appreciate that the respondent had casted aspersion upon the appellant by saying that he is not the biological father of their child and such kind of statement amounts to mental cruelty and character assassination of a lady.
11. The learned Court below has failed to appreciate that the respondent and his family members were making continuous demand for dowry and took the streedhan of the appellant and ousted her from her matrimonial home which fact has been supported by neighbor of the appellant who is an independent witness examined as Respondent Witness No.3.
12. Further it has not been appreciated by the learned Family Court that in the agreement dt. 14.06.2022, made after compromise during mediation in Original Maintenance Case No. 551/2021, it was agreed that the appellant will reside at her maternal house along with her child and the respondent shall pay rupees three thousand per month as maintenance amount but the respondent after paying maintenance for one month, has stopped paying anything to the appellant wife and her child.
13. It has further been submitted that the learned Court below committed serious illegality by passing the impugned Judgment dated 08/05/2023 in which he has failed to give any finding with regard to the issues framed in the matrimonial suit rather has only mentioned about matrimonial discord and simply observed about giving opportunity to the parties to settle their matrimonial discord once for all.
14. It has further been contended that the learned Court below committed serious illegality by passing the impugned Judgment dated 08/05/2023 in which the Court below has completely ignored the evidence adduced on 4 F.A. No. 120 of 2023 2025:JHHC:32683-DB behalf of the appellant and has solely relied upon the evidence of respondent husband.
15. Learned counsel for the appellant, based upon the aforesaid grounds, has submitted that the judgment impugned suffers from perversity, as such, not sustainable in the eyes of law.
Arguments advanced on behalf of the Respondent/Petitioner:
16. It has been contended that there is no error in the impugned judgement as the learned Family Judge has considered the entire issues and on the basis of evidences laid by the parties, has passed the order impugned, as such, same may not be interfered with.
17. The appellant-wife herself has deserted the respondent-husband without any reasonable excuse and, as such, the learned Family Court, after taking into consideration the evidence available on record has rightly granted a decree in the favour of respondent-husband for Restitution of Conjugal Rights.
18. Learned counsel for the respondent has submitted that the behavior of the appellant-wife during her stay in her matrimonial house was not good. She used to quarrel on trivial matters and also used to go to her parent's house frequently. She pressurized the respondent-husband to live as gharjamai and lastly, on 20.1.2020, she left her matrimonial home taking away her jewelleries including stridhan. Thereafter, on several times, the respondent-husband went to bring her back but he was abused. 5 F.A. No. 120 of 2023
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19. Further it has been contended that the appellant was never subjected to cruelty and torture by him or his family members for non-fulfillment of demand of dowry.
20. It is further stated that the respondent went four times to bring the appellant-wife back but she did not come.
21. It has also been submitted that the learned Family Court after taking into consideration the material available on record has found that the conduct of the appellant-wife has never been towards salvaging the institution of marriage as it is she who has deserted the respondent-husband and, therefore, on the pretext of the aforesaid categorical finding of the Family Court, the impugned order requires no interference. Analysis:
22. We have heard the learned counsel appearing for the parties, gone through the impugned judgment as well as the Trial Court Records, as also the testimonies of the witnesses and evidences available on record.
23. Before entering into merits of the case it would be apt to refer herein that under section 7 of the Family Courts Act, the Family Court shall have and exercise all the jurisdiction exercisable by any District Court or any Sub- ordinate Civil Court under any law for the time being in force in respect of suits and proceedings of the nature which are described in the explanation to section 7(1).
24. Sub-section (1) to section 19 of the Family Courts Act provides that an appeal shall lie from every judgment or order not being an interlocutory order of a Family Court to the High Court "both on facts and on law". 6 F.A. No. 120 of 2023
2025:JHHC:32683-DB Therefore, section 19 of the Family Courts Act is parallel to section 96 of the Code of Civil Procedure, the scope of which has been dealt with by the Hon'ble Apex Court in series of judgments.
25. The law is well settled that the High Court in a First Appeal can examine every question of law and fact which arises in the facts of the case and has powers to affirm, reverse or modify the judgment under question. In "Jagdish Singh v. Madhuri Devi" (2008) 10 SCC 497 the Hon'ble Supreme Court observed that it is lawful for the High Court acting as the First Appellate Court to enter into not only questions of law but questions of fact as well and the appellate Court therefore can reappraise, reappreciate and review the entire evidence and can come to its own conclusion. For ready reference the relevant paragraph of the said judgment is being quoted as under:
"It is no doubt true that the High Court was exercising power as the first appellate court and hence it was open to the Court to enter into not only questions of law but questions of fact as well. It is settled law that an appeal is a continuation of suit. An appeal thus is a rehearing of the main matter and the appellate court can reappraise, reappreciate and review the entire evidence--oral as well as documentary--and can come to its own conclusion."
26. Now we are proceeding to the factual aspects of the case. The admitted fact herein is that the suit has been filed by the respondent husband under Section 9 of the Hindu Marriage Act, 1955 for a decree of restitution of conjugal rights wherein, issues have been framed by the learned Family Court which have been quoted hereinabove in the preceding paragraphs 7 F.A. No. 120 of 2023 2025:JHHC:32683-DB wherefrom it is evident that primarily issue nos.(iii)and (iv) are most relevant.
27. This Court in order to appreciate the aforesaid rival submissions before entering into the legality and propriety of the impugned judgment needs to discuss herein the relevant part of the evidences adduced on behalf of the parties before the learned Family Court. For ready reference, the evidences laid on behalf of the respondent/petitioner is being referred as under:
(i) PW-1 Vijay Bhushan (Father of Petitioner husband) has stated almost same facts in his examination-in-chief filed on oath, as stated in the plaint. Further, he states that the respondent lived with them till 2020. He denied that they subjected the respondent with cruelty and torture for non-fulfillment of demand of dowry. He has denied that they have filed this case only to save their skin.
(ii) PW-2 Meena Devi (Mother of Petitioner) has stated the same facts as stated by PW-1 in his examination-in-chief filed on oath and nothing contrary elicited in her evidence.
(iii) PW-3 Rajmanish Kumar is the respondent/petitioner himself. He has stated the same facts as stated by PW-1 andPW-2 in their examination-in-chief filed on oath and further states that he went four times to bring his wife back. They have been blessed with a son. He denied the fact that he is not the biological father of their baby. He also denied the fact that due to their torture, his wife (appellant herein) does not want to live with him. He denied that he has filed this case only to save his skin.8 F.A. No. 120 of 2023
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28. The appellant/respondent has also adduced following evidences:
(i) RW-1 Dr Dhiraj Kumar (Brother of respondent) has supported the case of the respondent in his examination-in-chief filed on oath.
Further, he states that the respondent is living with him since 20.01.2020 and thereafter she never returned to her matrimonial home. After 20.01.2020, the petitioner along with his friends came to their house. When the petitioner used to come their house, there were conversations between them. The respondent never told him about returning to her matrimonial home. He is not ready to send the respondent to her matrimonial home, even if the Petitioner files Bond in Court. He denied the case of the Petitioner.
(ii) RW-2 Sunita Kumari (appellant herein) has fully supported her case. She has stated almost same as stated in her written statement and further states that she is living with her elder brother and mother. Their son is living with her. Their marriage was solemnized on 12.12.2019. Their son born on 06.09.2020. The Petitioner brought her to her parent's home on 20.01.2020 and since then she is living in her parent's home. From 20.01.2020 to 20.02.2021, the petitioner had come twice. When she was admitted in Hospital for birth of baby, the petitioner had come and had deposited Aadhaar Card in Hospital. She does not want to live with the petitioner at any cost. The petitioner does not do any work and has no income. Before marriage, she used to give tuition 50-60 students. Before solemnization of marriage, she was informed that the petitioner is Loco Pilot in Railway, but he does not do any work. She denied the 9 F.A. No. 120 of 2023 2025:JHHC:32683-DB suggestion that as there is no female member in her parent's home, so she wants to live in her parent's home.
(iii) RW-3 Rajesh Prasad (Independent witness) has fully supported the case of the respondent in his examination-in-chief filed on oath and further states that nowhere the respondent has made complaint about ousting her from her matrimonial home.
29. In the backdrop of the aforesaid factual aspect, now the question that arises for determination in this appeal is; whether prayer of respondent- husband for restitution of conjugal rights is just and proper; whether allegations levelled by the appellant-wife about mental and physical torture meted out to her and demand of dowry is true.
30. Both the points ate connected with each other; hence they are being taken up together for the sake of convenience.
31. Herein, it would be apt to discuss the object and scope of decree of restitution. The object of restitution decree was to bring about cohabitation between the estranged parties so that they could live together in the matrimonial home in amity. The leading idea of Section 9 was to preserve the marriage. For ready reference Section 9 of the Hindu Marriage Act is being referred as under:
"9. Restitution of conjugal rights.-- When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly. [Explanation.--Where a question arises whether there has been reasonable excuse for 10 F.A. No. 120 of 2023 2025:JHHC:32683-DB withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.]
32. From perusal of the aforesaid provision it is evident that if either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, before the court concerned, for restitution of conjugal rights and the court, on being satisfied with the statements made in such petition and further taking into consideration the legal ground that why the application should not be granted, may decree restitution of conjugal rights accordingly.
33. Further in explanation part of the said provision it has been prescribed that when a question arises whether there has been "reasonable excuse"
for withdrawal from the society, the burden of proving "reasonable excuse" shall be on the person who has withdrawn from the society.
34. It needs to refer herein that conjugal rights may be viewed in its proper perspective by keeping in mind the dictionary meaning of the expression "Conjugal" wherein the meaning of 'conjugal' as "of or pertaining to marriage or to husband and wife in their relations to each other" is given (Shorter Oxford English Dictionary, 3rd Edn. Vol. I page
371).
35. In the Dictionary of English Law, 1959 Edn. at page 453, Earl Jowitt defines 'conjugal rights' thus:
"The right which husband and wife have to each other's society and marital intercourse. The suit for restitution of conjugal rights is a matrimonial suit, cognizable in the Divorce Court, which is brought whenever either the husband or the wife lives separate from the other without any sufficient reason, in which case the court will decree 11 F.A. No. 120 of 2023 2025:JHHC:32683-DB restitution of conjugal rights (Matrimonial Causes Act, 1950, s. 15), but will not enforce it by attachment, substituting however for attachment, if the wife be the petitioner, an order for periodical payments by the husband to the wife (s.22). Conjugal rights cannot be enforced by the act of either party, and a husband cannot seize and detain his wife by force (R.V. Jackson [1891] 1 Q.B. 671)".
36. In India it may be borne in mind that conjugal rights i.e. right of the husband or the wife to the society of the other spouse is not merely creature of the statute. Such a right is inherent in the very institution of marriage itself. Thus, the restitution of conjugal rights is often regarded as a matrimonial remedy. The remedy of restitution of conjugal rights is a positive remedy that requires both parties to the marriage to live together and cohabit.
37. Thus, the requirements of the provision of restitution of conjugal rights are the following:
(i) The withdrawal by the respondent from the society of the petitioner.
(ii) The withdrawal is without any reasonable cause or excuse or lawful ground.
(iii) There should be no other legal ground for refusal of the relief.
(iv) The court should be satisfied about the truth of the statement made in the petition
38. The Hon'ble Apex Court in the case of Suman Singh v. Sanjay Singh, (2017) 4 SCC 85 has categorically observed that when there is 12 F.A. No. 120 of 2023 2025:JHHC:32683-DB evidence establishing that it was respondent husband who withdrew from appellant's company without any reasonable cause, appellant is entitled to decree for restitution of conjugal rights. For ready reference the relevant paragraph is being quoted as under:
24. In our considered view, as it appears to us from perusal of the evidence that it is the respondent who withdrew from the appellant's company without there being any reasonable cause to do so. Now that we have held on facts that the respondent failed to make out any case of cruelty against the appellant, it is clear to us that it was the respondent who withdrew from the company of the appellant without reasonable cause and not the vice versa.
25. In view of the foregoing discussion, the appeals succeed and are allowed. The impugned judgment [Suman Singh v. Sanjay Singh, 2013 SCC OnLine Del 2138 : (2013) 136 DRJ 107] is set aside. As a result, the petition filed by the respondent (husband) under Section 13(1) of the Act seeking dissolution of marriage is dismissed. As a consequence thereof, the marriage between the parties is held to subsist whereas the petition filed by the appellant against the respondent under Section 9 of the Act seeking restitution of conjugal rights is allowed. A decree for restitution of conjugal rights is, accordingly, passed against the respondent.
26. We hope and trust that the parties would now realise their duties and obligations against each other as also would realise their joint obligations as mother and father towards their grown up daughters.
Both should, therefore, give a quiet burial to their past deeds/acts and bitter experiences and start living together and see that their daughters are well settled in their respective lives. Such reunion, we feel, would bein the interest of all family members in the long run and will bring 13 F.A. No. 120 of 2023 2025:JHHC:32683-DB peace, harmony and happiness. We find that the respondent is working as a "Caretaker" in the Government Department (see Para 4 of his petition). He must, therefore, be the "Caretaker" of his own family that being his first obligation and at the same time attend to his government duties to maintain his family.
39. Thus, on the basis of aforesaid settled position of law, it is evident that the court will grant a decree for restitution of conjugal rights when one spouse has withdrawn from the other's society without reasonable excuse. This means if a husband or wife leaves the marital home or refuses to live with their spouse without a justifiable reason, the other spouse can petition the court for this remedy. The court, if satisfied with the truth of the petition and finding no legal barrier, may order the withdrawing spouse to return and resume cohabitation.
40. In the backdrop of the settled position this Court is now re- adverting to the factual aspect of the instant case wherefrom it is evident from the testimony and evidence available on record that the respondent husband had alleged the appellant has withdrawn herself from the marital obligation without any reasonable excuse. It has been stated that appellant wife used to pickup quarrel on trivial issue and frequented to her parents' home and since 20.01.2020 she had left her matrimonial house.
41. Per contra appellant wife had stated in her written statement that due to torture and cruelty as inflicted by the respondent husband, it was impossible for her to carry out the marital obligation and the respondent husband has filed the petition under Section 9 of the Act 1955 to save his 14 F.A. No. 120 of 2023 2025:JHHC:32683-DB skin. She had further stated that respondent wife the respondent husband does not do any work and has no income and he had lied to the appellant that he is Loco Pilot in Railway and, in these circumstances, he cannot take care of the appellant and the child.She had stated that the respondent husband had casted aspersion upon the appellant by saying that he is not the biological father of their child and such kind of statement amounts to mental cruelty and character assassination of a lady.
42. Thus, from the aforesaid it is evident that appellant wife due to discord in marital life does not want to continue the same and she had alleged that she had been compelled to leave the house of the respondent husband.
43. Now this Court is going to appreciate the contention of the learned counsel for the appellant wherein it has been contended on behalf of the appellant that the judgment passed by the learned court below is grossly perverse, as such, the same cannot sustain in the eye of law as well on facts, hence, the same is liable to be set aside.
44. This Court while appreciating the argument advanced on behalf of the appellant on the issue of perversity needs to refer herein the interpretation of the word "perverse" as has been interpreted by the Hon'ble Apex Court which means that there is no evidence or erroneous consideration of the evidence.
45. The Hon'ble Apex Court in Arulvelu and Anr. vs. State [Represented by the Public Prosecutor] and Anr., (2009) 10 SCC 206 while elaborately discussing the word perverse has held that it is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant 15 F.A. No. 120 of 2023 2025:JHHC:32683-DB material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law. Relevant paragraphs, i.e., paras-24, 25, 26 and 27 of the said judgment reads as under:
"24. The expression "perverse" has been dealt with in a number of cases. In Gaya Din v. Hanuman Prasad [(2001) 1 SCC 501] this Court observed that the expression "perverse" means that the findings of the subordinate authority are not supported by the evidence brought on record or they are against the law or suffer from the vice of procedural irregularity.
25. In Parry's (Calcutta) Employees' Union v. Parry & Co. Ltd. [AIR 1966 Cal 31] the Court observed that "perverse finding" means a finding which is not only against the weight of evidence but is altogether against the evidence itself. In Triveni Rubber & Plastics v. CCE [1994 Supp (3) SCC 665 : AIR 1994 SC 1341] the Court observed that this is not a case where it can be said that the findings of the authorities are based on no evidence or that they are so perverse that no reasonable person would have arrived at those findings.
26. In M.S. Narayanagouda v. Girijamma [AIR 1977 Kant 58] the Court observed that any order made in conscious violation of pleading and law is a perverse order. In Moffett v. Gough [(1878) 1 LR 1r 331] the Court observed that a "perverse verdict" may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. In Godfrey v. Godfrey [106 NW 814] the Court defined "perverse" as turned the wrong way, not right; distorted from the right; turned away or deviating from what is right, proper, correct, etc.
27. The expression "perverse" has been defined by various dictionaries in the following manner:
1. Oxford Advanced Learner's Dictionary of Current English, 6th Edn. "Perverse.--Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable."
2. Longman Dictionary of Contemporary English, International Edn.16 F.A. No. 120 of 2023
2025:JHHC:32683-DB Perverse.--Deliberately departing from what is normal and reasonable.
3. The New Oxford Dictionary of English, 1998 Edn. Perverse.--Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law.
4. The New Lexicon Webster's Dictionary of the English Language (Deluxe Encyclopedic Edn.) Perverse.--Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or petulant
5. Stroud's Judicial Dictionary of Words & Phrases, 4th Edn.
"Perverse.--A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence."
46. Now this Court is adverting to impugned judgment fin order to find out that whether the impugned judgment is suffering from the element of perversity or not.
47. From the impugned judgment it appears that the learned Family Court has not given any cogent finding with regard to the issues framed in the matrimonial suit rather has only mentioned about matrimonial discord and simply observed about giving opportunity to the parties to settle their matrimonial discord once for all.
48. At this juncture it requires to refer herein that a husband can file a petition for restitution of conjugal rights if his wife has withdrawn from his society without reasonable excuse, seeking a court order for her to resume living with him. The court may grant the decree if it is satisfied the petition's claims are true and there is no legal ground to refuse it. This remedy serves as a way for the aggrieved spouse to seek the restoration of the right to cohabit with the other spouse.
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49. But in the instant case it is apparent from the impugned judgment that the learned Family Court has not given proper finding on the issue that whether the appellant wife has withdrawn from society of the respondent husband without reasonable excuse or she was compelled to withdrawn from the society of the husband.
50. Further there is no dispute that Sub-section (1) of section 9 entitles a spouse to restitution of conjugal rights if the other spouse without reasonable cause withdraws from his or her society but where conduct of a spouse falls short of cruelty or any other matrimonial offence but it is harsh and unbearable, it may justify a spouse in leaving the other.
51.Several decisions of Indian High Courts too have expressed view more or less similar to it. In Anjani Dei v. Krushna ChandraAIR 1954 Ori 117, it was observed by Mohapartra, J:
"Apart from the question of physical cruelty, torture or assault by any member of the family if the circumstances are such that it is not possible for the wife to live as a wife with self-respect and dignity in the house of the husband. Indeed she is entitled to separate maintenance and residence."
52.Similarly, in Mst. Gurdev Kaur v. Sarwan Singh, AIR 1959 Punjab 162 Grover, J. said that:
"Where the husband is guilty of conduct which falls short of legal cruelty in the sense that it is not cruelty of the kind mentioned in 'section 10(l)(b) of the Hindu Marriage Act, but his misbehaviour or misconduct is such that the wife is fully justified in separating herself from him, the husband cannot succeed in his petition under section 9 as it will not be possible for the Court to say that the wife has withdrawn herself from his society without reasonable excuse.In a case of this nature the petition shall fail not because of any defence set up by the wife under section 9(2) but it cannot succeed on account of the non-fulfillment of one ofthe essential ingredients of sub-section(1) 18 F.A. No. 120 of 2023 2025:JHHC:32683-DB of section 9. Apart from the provisions of section 9(1) even if a proceeding is undefended it is obligatory on the Court to be satisfied under section 23(l)(a) that the petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief.
This makes the position clearer that the Court is bound to take into consideration the conduct of the petitioner. If the petitioner has by his own misdeeds forced his spouse to leave him, he cannot be allowed to take advantage of his own wrong and ask for the assistance of the Court of perpetuate his own wrong doing."
53. It is evident from the evidence of the wife wherein she has stated specifically that she was compelled to leave her matrimonial house but the learned trial court has not taken into consideration the said aspect of the matter and merely gone into the issue of quarrel in between the parties. The requirement under the law in the case of adjudication of the issue is that the adjudication is to be based upon the consideration of the evidence and, particularly, in the case of restitution of conjugal rights, it is primary duty of the learned Family Judge to look into the evidence of the wife as to whether she intends to live with the husband or not, peacefully and with all dignity. If the wife utters that she cannot live with the husband due to the reason as stated by the wife in her evidence, the court cannot compel such party to live together with the husband compromising with the dignity and subjected to cruelty as is being reflected from the evidence of the wife.
54. Further, the appellant wife cannot therefore be compelled to resume matrimonial life with the respondent husband, in the face of such cruel treatment. Moreover, herein matrimonial life lasted only for one and half month and the couple have been living separately since 20.01.2020 and after all these years, restitution would not be justified or feasible. Further the severe allegation has been alleged by the appellant wife against the respondent husband. It has come in written statement that respondent husband had casted aspersion upon the appellant by saying that he is not 19 F.A. No. 120 of 2023 2025:JHHC:32683-DB the biological father of their child and further respondent had lied to the appellant wife that he is Loco Pilot in Railway.
55. From the perusal of impugned judgment, it is evident that the learned Family Court has not given any concrete finding upon the aforesaid fact rather just a direction for co-habitation was passed, therefore the subjective satisfaction which is the utmost requirement for deciding the issue of restitution of conjugal right is not reflected in the impugned judgment.
56.The upshot of the whole discussion, therefore, is that this appeal succeeds, the impugned judgment dated 8.5.2023 and the decree dated 12.5.2023 passed by the learned Principal Judge, Family Court, Bokaro in connection with Original Suit No. 111 of 2021 are set aside.
57.Accordingly, the instant appeal is allowed.
58.Pending interlocutory application(s), if any, also stands disposed of.
(Sujit Narayan Prasad, J.) (Arun Kumar Rai, J.) Jharkhand High Court Date: 30th October, 2025 KNR/A.F.R. Uploaded On: /11/2025 20 F.A. No. 120 of 2023