Madhya Pradesh High Court
Devashish Yadav vs Gunjan Yadav on 18 June, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
Misc. Petition No.2816 of 2024
DEVASHISH YADAV
Vs.
GUNJAN YADAV
APPERANCE
Shri Shashank Sharma and Shri Harsh Sharma - Advocate for the
petitioner.
Shri Madan Mohan Shrivastava - Advocate for the respondent.
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Reserved on : 24/03/2025
Delivered on : 18/6/2025
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This petition having been heard and reserved for orders, coming
on for pronouncement this day, the Hon'ble Shri Justice Milind
Ramesh Phadke pronounced/passed the following:
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ORDER
The instant petition, under Article under Article 227 of the Constitution of India, has been preferred seeking quashment of the proceedings arising out of application No.848/2023 filed by respondent/wife for the restitution of conjugal rights under section 9 Hindu Marriage Act, 1955 before the learned Family Court, Gwalior.
2. The aforesaid relief has been claimed by the petitioner/husband alleging that filing of the said application is sheer abuse of process of law by the Respondent, as in the year 2018 in an application filed by the petitioner/husband under Section 9 of the Act, the respondent/wife had categorically denied to live with him and the present application has 2 been filed as a counterblast to the petition for divorce filed by the petitioner on account of separation since March, 2017.
FACTS
3. Short facts of the case are that the parties to the petition got married on 10.03.2016 as per Hindu rites and rituals at Gwalior. The petitioner being from Jaipur got the marriage registered with Registrar of the Marriages at Jaipur having Registration No.416002983. After the marriage, the parties resided at the address of the petitioner/husband at Kanke, in Jharkhand and during that period, the respondent/wife stayed with the petitioner/husband for about six months and for the remaining four months, she lived with her parents at Gwalior. On 17.03.2017, when the respondent/wife was about to leave for her parental home at Gwalior from Jaipur in absence of the petitioner, she informed about her pregnancy to the petitioner's mother. Surprisingly, the petitioner was not informed by the respondent regarding her pregnancy. Hearing the said news, mother-in-law and sister-in-law of the respondent accompanied her and dropped her at Jaipur Railway Station and later on, the petitioner was informed about the pregnancy of the respondent/wife.
4. The moment the respondent arrived at Gwalior, her behavior and conduct as well as of that of her entire family members towards the petitioner and his family members changed overnight. The respondent/wife not only stopped calling the petitioner but also refrained herself from talking to him on mobile and secondly, the father of the respondent/wife Shri Haribabu Yadav provided a medical report dated 21.03.2017 of the respondent/wife showing that she was physically abused but there were no injuries shown in the said report. After that during one of the telephonic conversation, the behavior of the 3 father of the respondent/wife towards the mother of petitioner was abusive and derogatory in nature, but as and when the news of pregnancy was confirmed by father of the respondent/wife, the petitioner/husband and his family members went to Gwalior on 21.05.2017, where both of them were abused and without any plausible reason the respondent/wife refused to accompany the petitioner/husband. Later on 04.08.2017, when the petitioner alone went to the respondent's house to bring her back, she blatantly refused to return back with him.
5. Ultimately, the petitioner/husband was constrained to file petition under Section 9 of Act for the restitution of conjugal rights before the Family Court, Jaipur on 08.08.2017 and thereafter, the matter was referred for mediation on 07.03.2018. On 07.03.2018, when the respondent/wife came to participate in the said mediation proceedings, she submitted an application before the Police Station Mansarovar, Jaipur on the same day, wherein no allegations of dowry, harassment and assault were levelled against the petitioner/husband and the reason mentioned therein was of willful desertion or mutual discord only. The mediation, which was directed to be conducted by the Family Court due to indifferent behaviour of the respondent/wife, failed and therefore, the matter was again referred back to the Family Court Jaipur. During her stay at Jaipur, the respondent and her family members went to the residence of the petitioner where they shouted, abused and raised false allegations against the petitioner and his family members, which is admitted by the respondent in her cross-examination dated 19.05.2023 in the proceedings under Section 125 Cr.P.C and it was threatened by father of the respondent that since the petitioner had filed a case before 4 the Court, now better take his daughter by the Court itself. He also threatened that she will make the petitioner kneel & crawl and beg for mercy.
6. After the mediation got failed in the proceedings pending before the Family Court, Jaipur, an application dated 18.03.2018 was filed by the respondent/wife before Police Station Mahila Thana Padav Lashkar, Gwalior (M.P.) making false allegations of threat to her life, demand of dowry and physical assault by the petitioner and his family members. Similar application was moved by the respondent/wife on 02.04.2018 before the Women and Child Welfare and Empowerment Officer making allegations of domestic violence against the petitioner.
7. The Mahila Thana Padav, Gwalior also conducted a mediation from 05.04.2018 to 31.05.2018 and this time, the respondent in front of the Mediator/Police showed her interest to join the matrimonial home only on papers but in reality, she was interested in extracting money from the petitioner and was adamant to initiate criminal proceedings against the petitioner and his family members.
8. The continuous abusive, harassing conduct of the respondent/wife and her family members, led the petitioner/husband and his family members shocked and therefore, the petitioner decided to get separated amicably through mediation, but since the respondent/wife was neither ready to give divorce amicably nor was ready to live together therefore, the mediation before the Mahila Thana, Padav also failed.
9. The Police authorities thereafter registered zero F.I.R. dated 13.06.2018 at Gwalior and later on, transferred it to the Police Station Mansarovar, District Jaipur, Rajasthan.
10. On 14.04.2018, the respondent filed an application under Section 5 125 of the CrPC which was registered as Case No.119 of 2018 before the Family Court, Gwalior based upon false and fabricated allegations which is still pending.
11. Again the respondent/wife submitted an application dated 13.06.2018 before Mahila Thana Padav, Gwalior, for registration of F.I.R. against the petitioner and his family members and since the zero FIR was already registered, application dated 13.06.2018 being completely false and fabricated, was not entertained.
12. Thereafter, the respondent/wife submitted another application under Section 12 of Domestic Violence Act, 2005 against the petitioner, which was registered as Case No.823 of 2018 on 22.06.2018. The matter is still pending and is at the stage of respondent's evidence.
13. The respondent also approached this Court seeking directions for the police authorities at Gwalior for registering an F.I.R. against the petitioner vide M.Cr.C. No.25664 of 2018, but the said petition was dismissed holding that Mahila Thana Padav, Gwalior had rightly transferred the Zero F.I.R registered against the petitioner to Mansarowar, Police Station at Jaipur, as no cause of action had arisen at Gwalior.
14. As all the remedies were exhausted, finally the respondent appeared before the Family Court Jaipur in person and filed a detailed reply dated 13.08.2018 to the application under Section 9 of Act filed by the petitioner, wherein she clearly averred that she is no longer interested in joining the matrimonial home of the petitioner, rather the respondent categorically levelled allegations of her harassment at the hands of the petitioner is of such a nature that she cannot imagine her life with the petitioner. The learned Family Court Jaipur on 08.10.2018 6 framed issues in the matter. In between, vide letter dated 16.11.2018, the respondent informed the Police Station Mahila Thana at Jaipur about her willingness to do job and demanded educational documents from the petitioner. In the meanwhile, petitioner's sister Anukriti Yadav passed away in the year 2018.
15. In reply to the said letter, the petitioner provided complete and correct list of dowry articles alongwith the documents in the Police Station vide letter dated 24.12.2018 and in turn, the Investigating Officer vide letter dated 29.12.2018 informed the respondent to take away the articles including Swift Dezire Car etc., but the respondent vide letter dated 29.12.2018 categorically refused to take away the articles and showed her desire to live with the petitioner which is clearly contradictory of her reply before the Family Court, Jaipur in the proceedings under Section 9 of the Act. The aforesaid act of the respondent proves her changing stand and as per her sweet will with the sole purpose to harass the petitioner and his family members.
16. When the very F.I.R. bearing Crime No.79 of 2018 was challenged in Criminal Misc.(Petition) No.534 of 2019 before the High Court of Rajasthan Bench at Jaipur, the Investigating Officer informed the Court that no incriminating evidence has been found against the family members of the petitioner and, therefore, the High Court of Rajasthan had disposed of the said petition vide order dated 01.04.2019.
17. In the midst of the said proceedings, the respondent preferred one S.L.P. (Criminal) No.4506 of 2019 against the order passed by this Court in M.Cr.C. No.25664 of 2018, dated 16.07.2018 wherein challenge was made to transfer of F.I.R. from Gwalior to Jaipur. Therein the respondent deliberately did not array the petitioner and his family 7 members as respondents in the aforesaid S.L.P. which made the petitioner to prefer an application for his impleadment which was allowed vide order dated 13.08.2021.
18. The petitioner also filed an application under Section 340 Cr.P.C. on 11.07.2019 before the Family Court, Gwalior for filing false and contradictory averments in the pleadings of respondent in the proceedings under Section 125 Cr.P.C., which was dismissed by the Family Court, Gwalior vide order dated 14.03.2022 after receiving the reply from the respondent/wife.
19. In the matter pending before the Apex Court, vide order dated 13.08.2021, the parties were directed to undergo the process of mediation which was held in Delhi through Video Conferencing but it failed and the mediation report was submitted on 18.11.2021, but again the Apex Court vide order dated 03.02.2022 directed the parties to go for another round of mediation, which also failed. The Apex Court vide order dated 14.10.2022 for the third consecutive time referred the matter for mediation and this time Mediator was one retired Judge of the Apex Court, Mr. Justice Kurian Joseph, but this third mediation also failed.
20. In the meanwhile, the petitioner moved an application under Section 151 of CPC read with Order 23 Rule 1 of CPC on 11.03.2022 for withdrawal of Petition No.517 for 2017 filed for restitution of conjugal rights filed by him before the Family Court, Jaipur keeping in view of consecutive failure of mediation and the respondent's attempt to approach the Apex Court to get F.I.R. bearing Crime No.79 of 2018 transferred from Jaipur to Gwalior and thereafter, the petitioner filed divorce petition bearing No.427 of 2022 under Section 13 of the Act before the Family Court Jaipur on 16.08.2022 on the ground of cruelty 8 and harassment. In the year 2022, the mother of the petitioner was detected with breast Cancer.
21. Immediately, after receiving the notice of divorce issued by the Family Court, Jaipur, the petitioner filed the present application under Section 9 of Act for restitution of conjugal rights. When the respondent in her cross-examination before the Family Court, Gwalior in the proceedings under Section 125 Cr.P.C. had stated that since 2017, she had not filed any application under Section 9 of the Act for restitution of conjugal rights and secondly, she had admitted of filing reply to Section 9 application filed by the petitioner before the Family Court, Jaipur wherein she had categorically mentioned her unwillingness to live with the petitioner, filing of the said application was only intention to harass the petitioner.
22. The respondent had also immediately filed Transfer Petition (Civil) No.2143/2023 on 28.07.2023 before the Apex Court for transfer of the divorce Petition No.427 of 2022 from Jaipur to Gwalior.
23. In the meanwhile, the Apex Court vide order dated 12.09.2023 while disposing of the SLP (Criminal) No.4506/2019 filed by the respondent/wife for transfer of F.I.R. bearing Crime No.79/2018 from Jaipur to Gwalior directed the Jaipur Police to immediately file final report/charge-sheet in the matter. In light of the aforesaid directions, final report/charge sheet was filed against the petitioner.
24. Apprehending any serious consequences, the present petition has been filed seeking following reliefs:
"i) To quash the proceedings arising out of application No.848/2023 filed under section 9 Hindu Marriage Act, 1955 before the learned Family Court, 9 Gwalior by the Respondent on account of abuse of process of law;
ii) That, the cost of the petition be awarded or any other order or direction deemed fit in the circumstances of the case be issued in the favour of the petitioners."
ARGUMENTS
25. Learned counsel for the petitioner/husband has argued before this Court that looking to the actions of the respondent being self- contradictory with sole aim to harass the petitioner and when the the Respondent never intended genuinely to join the matrimonial home of the Petitioner, therefore, the very application filed under Section 9 of the Act for restitution of conjugal rights is just a farce and with an intention to break the petitioner to such an extent that he would dance to her tunes.
26. It was further argued that the respondent in the year 2018 had categorically denied to live with the petitioner by filing reply on oath to Section 9 application filed by the Petitioner before Family Court, Jaipur but the moment she received notice of divorce petition in the year 2023, that she immediately filed an application under Section 9 before the learned Family Court, Gwalior. The aforesaid act of the respondent also shreds clouds when her statement in cross-examination in the proceedings under Section 125 proceedings before the learned Family Court, Gwalior are seen wherein she had clearly admitted that she had no connection with the family of the petitioner despite the death of the father and younger sister of the petitioner and when she had never bothered even once to visit and take well being of old mother-in-law who is suffering from Cancer.
1027. It was also argued that now when no family member is alive of the petitioner and his mother is ailing, the respondent is not ready to live with him and now it is beyond imagination to live with the respondent, that too when in the presence of all family members of the petitioner, the respondent had harassed him to such an extent/gravity, then in their absence, what shall be the consequences of living under same roof. Thus, alleging the conduct of respondent to be abusive of process of law and full of malice and since for the past 07 years, no attempts have been made by the respondents to join the matrimonial home of the petitioner, and is only with the aim of harassing him, prayed for indulgence of this Court.
28. On the basis of the aforesaid facts and arguments, it was submitted that the proceedings arising out of an application filed under section 9 Hindu Marriage Act, 1955 in Case No.848 of 2023 pending before the Family Court, Gwalior at the instant of the respondent be quashed.
29. On the contrary, learned counsel for the respondent/wife had opposed the prayer so made by counsel for the petitioner and prayed for dismissal of the present petition.
30. Heard counsel for the parties and perused the record.
DISCUSSION AND CONCLUSION
31. Application under Section 9 of the Act can be rejected on various grounds, including lack of genuine intention, non-compliance with the Courts orders, withdrawal of the application, insufficient evidence, prior decrees and absence of co-habitation, it is crucial for the parties seeking restitution of conjugal rights to ensure that their application are well founded and supported by evidence to avoid dismissal/rejection.
1132. Section 9 of the Hindu Marriage Act, 1955 on the basis of which the respondent/wife had filed the application reads as under:-
"When either the husband or the wife has without reasonable excuse withdrawn from the society of the other the 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 withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society."
33. The purpose of section 9 of the Act of 1955 is to maintain the sacrifice aspect of marriage by eliminating disparities that arise between spouses and this can be accomplished by granting relief of restitution of marital rights. This remedy of restitution of conjugal rights is a beneficial privilege because it allows deserted spouses to be together and cohabit, however, it is also used incorrectly in several instances. From bare perusal of Section 9 of the Act, it is amply clear that when either the husband or wife has, without reasonable excuse, withdrawn from the society of the other, on being satisfied of the truthfulness of the statements made in such petition and that there is no legal ground for not granting application, the Court may pass the decree of restitution of conjugal right. From the explanation attached to the section, it is also 12 very much clear that when question arises as to whether there has been reasonable excuse for withdrawal from the society of the spouse, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society of the other spouse.
34. Under traditional Hindu law, a wife was obligated to live with her husband and perform her duties as a wife, and if she refused to do so without any just cause, the husband could seek a judicial separation. The concept was codified in the Hindu Marriage Act, 1955 which was one of the first legislation in India to provide for the restitution of conjugal rights. The provision in Section 9 of the Act allows a spouse to seek a court order requiring the other spouse to resume cohabitation and fulfill their marital obligations.
35. From the record, it is evident that it is not in dispute that the parties were married on 10.03.2016 as per Hindu rites and rituals at Gwalior and after the marriage, the respondent resided at the matrimonial house at Kanke in Jharkhand and after six months of the marriage, she left the company of the the petitioner/husband. It is also an admitted fact that the petitioner/husband had filed a petition under Section 9 of Act for the restitution of conjugal rights before the Family Court, Jaipur on 08.08.2017 and therein, when the matter was referred for mediation on 07.03.2018, but the respondent/wife submitted an application before the Police Station Mansarovar, Jaipur on the same day, wherein no allegation of dowry, harassment and assault were levelled against the petitioner/husband and the reason mentioned therein was of willful desertion or mutual discord only, therefore, the mediation, which was directed to be conducted by the Family Court due to her indifferent behaviour failed and therefore, the matter was again 13 referred back to the Family Court Jaipur. It is also evident from the record that during her stay at Jaipur, the respondent and her family members went to the residence of the petitioner where they misbehaved with the petitioner/husband and his family members, which is admitted by the respondent in her cross-examination dated 19.05.2023 in the proceedings under Section 125 Cr.P.C and after the mediation got failed in the proceedings pending before the Family Court, Jaipur, an application dated 18.03.2018 was filed by the respondent/wife before Police Station Mahila Thana Padav Lashkar, Gwalior making allegations of threat to her life, demand of dowry and physical assault against the petitioner and his family members and similar application was moved by the respondent/wife on 02.04.2018 before the Women and Child Welfare and Empowerment Officer making allegations of domestic violence against the petitioner. The Mahila Thana Padav, Gwalior also conducted a mediation from 05.04.2018 to 31.05.2018 and it was this time, the respondent in front of the Mediator/Police showed her interest to join the matrimonial home but later on she was refused, thus, looking to the conduct of the respondent/wife and her family members, the petitioner/husband decided to get separated amicably through mediation, but since the respondent/wife was neither ready to give divorce amicably nor was ready to live together, the mediation before the Mahila Thana, Padav also failed. The Police authorities thereafter registered zero F.I.R., under Sections 498-A, 506, 34 of IPC and Section 4 of the Dowry Prohibition Act, dated 13.06.2018 at Gwalior and later on, transferred it to the Police Station Mansarovar, District Jaipur, Rajasthan. On 14.04.2018, the respondent/wife filed an application under Section 125 of the CrPC before the Family Court, 14 Gwalior which is still pending. Again the respondent/wife submitted an application dated 13.06.2018 before Mahila Thana Padav, Gwalior, for registration of F.I.R. against the petitioner and his family members but since the zero FIR was already registered, the application dated 13.06.2018 was not entertained. Thereafter, the respondent/wife submitted another application under Section 12 of Domestic Violence Act, 2005 against the petitioner, which is still pending and is at the stage of respondent's evidence. The respondent also approached this Court seeking directions for the police authorities at Gwalior for registering an F.I.R. against the petitioner vide M.Cr.C. No.25664 of 2018, but the said petition was dismissed holding that there is no merits in the matter since Mahila Thana Padav, Gwalior had already transferred the Zero F.I.R registered against the petitioner to Mansarowar, Police Station at Jaipur. Ultimately, after exhausting all the remedies, the respondent appeared before the Family Court at Jaipur and filed a detailed reply dated 13.08.2018 to the application under Section 9 of Act filed by the petitioner/husband, wherein she clearly refused to join her matrimonial home and categorically levelled allegations of her harassment against the petitioner. The learned Family Court Jaipur on 08.10.2018 framed issues in the matter. In between, petitioner's sister Anukriti Yadav passed away in the year 2018. The petitioner in the meanwhile provided complete and correct list of dowry articles alongwith the documents in the Police Station vide letter dated 24.12.2018, but the respondent vide letter dated 29.12.2018 refused to take away the articles and showed her desire to live with the petitioner which was clearly contradictory of her reply before the Family Court, Jaipur in the proceedings under Section 9 of the Act. The aforesaid act 15 of the respondent proves her changing stand.
36. It is also evident from the record that when the very F.I.R. bearing Crime No.79 of 2018 was challenged in Criminal Misc.(Petition) No.534 of 2019 before the High Court of Rajasthan Bench at Jaipur, the Investigating Officer informed the Court that no incriminating evidence was found against the family members of the petitioner and, therefore, the High Court of Rajasthan disposed of the said petition vide order dated 01.04.2019. The respondent had also preferred one S.L.P. (Criminal) No.4506 of 2019 against the order passed by this Court in M.Cr.C. No.25664 of 2018, dated 16.07.2018 wherein challenge was made to transfer of F.I.R. from Gwalior to Jaipur and therein the respondent deliberately did not array the petitioner and his family members as respondents which made the petitioner to prefer an application for his impleadment which was allowed vide order dated 13.08.2021. In the matter pending before the Apex Court, vide order dated 13.08.2021, the parties were directed to undergo the process of mediation held in Delhi through Video Conferencing but it also failed and the mediation report was submitted on 18.11.2021. Again the Apex Court vide order dated 03.02.2022 directed the parties to go for another round of mediation, which also failed. The Apex Court vide order dated 14.10.2022 for the third consecutive time referred the matter for mediation and this time Mediator was one retired Judge of the Apex Court but this third mediation also failed. Meanwhile, the petitioner moved an application under Section 151 of CPC read with Order 23 Rule 1 of CPC on 11.03.2022 for withdrawal of Petition No.517 for 2017 filed for restitution of conjugal rights filed by him before the Family Court, Jaipur keeping in view of consecutive failure of 16 mediations and thereafter, the petitioner filed divorce petition bearing No.427 of 2022 under Section 13 of the Act before the Family Court Jaipur on 16.08.2022 on the ground of cruelty and harassment. Immediately, after receiving the notice of divorce issued by the Family Court, Jaipur, the petitioner filed the present application under Section 9 of Act for restitution of conjugal rights, when the respondent in her cross-examination before the Family Court, Gwalior in the proceedings under Section 125 Cr.P.C. had stated that since 2017, she had not filed any application under Section 9 of the Act for restitution of conjugal rights and secondly, she had admitted in reply to Section 9 application filed by the petitioner before the Family Court, Jaipur that she is unwilling to live with the petitioner which appears that filing of the said application is only with an intention to harass the petitioner.
37. As the conduct of the respondent/wife inflicts upon the petitioner/husband such mental pain and suffering as would make it not possible for him to live with her and the situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. The Court must have regard to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. Even otherwise, in the year 2022, the mother of the petitioner has been detected with breast Cancer and in that eventuality, when no family member is alive of the petitioner to look after his mother and the respondent till date had not shown her readiness and willingness to live with him, for the reasons mentioned hereinabove, 17 this Court finds justifiable reason to quash the proceedings of Case No.848-A of 2023 pending before the Family Court, Gwalior (Annexure P/2). Accordingly, they are hereby quashed.
38. The present petition is hereby allowed and disposed off.
(Milind Ramesh Phadke) Digitally signed by PAWAN KUMAR DN: c=IN, o=HIGH COURT OF MADHYA Judge PAWAN PRADESH BENCH GWALIOR, ou=HIGH pwn* COURT OF MADHYA PRADESH BENCH GWALIOR, 2.5.4.20=b864d1ab4ace2215bfcf3ab301 c34d631287f1b1cdd90b4a49f265f02d9d KUMAR 593f, postalCode=474001, st=Madhya Pradesh, serialNumber=61B9D129971D2EA4FD44 55ED49EA436EA65E26164BEEED891531 91C56E98CE21, cn=PAWAN KUMAR Date: 2025.06.18 18:07:45 +05'30'