1 wp-9557 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Civil Writ Petition No.9557 of 2010 Priyanka Vinayak Shitole .. .. Petitioner v/s. Vinayak Shitole & ors. .. .. Respondents Mr.Mukesh J. Pabari for Petitoiner. Mr.C.B. Shirke with Ms.Vaishali Dhotre for Respondents. ----- CORAM : SMT.ROSHAN DALVI, J. DATED : 11th January 2011 P.C. : 1.This is a wholly redundant writ petition over a wholly non-contentious issue. The petition in the Family Court has proceeded to trial. After the trial was complete the arguments were to be heard. At that time a needless application came to be made for deleting one issue. Though technically correct, it has not enhanced the Applicant s case at all. The issue is related to the entitlement of restitution of conjugal rights. At that stage at which the suit was, it would have been best determined on merits. Instead the learned Judge, however technically correctly, went through the pleadings and came to the conclusion that there were no 2 wp-9557 pleadings to justify the issue. The learned Judge is correct on that score. 2.The Advocate on behalf of the Petitioner drew my attention to the written statement of the Petitioner filed in the Family Court. The written statement makes two bare averments. In Para-7 she has averred that she was always happy in her matrimonial home. In Para-15 she has averred that despite filing the application under the Domestic Violence Act for accommodation and maintenance, her intention is to reside with her husband as his wife and she is ready to withdraw the criminal case filed against her husband and his family members. 3.These are averments as far as they have gone in a petition for conjugal rights. Being happy in the matrimonial home would rule out any cruelty on the part of the husband. It does not give her right to conjugal rights unless her spouse is correspondingly happy to restitute her those rights. Similarly wanting to reside with her husband does not give her right to conjugal rights. 4.The Advocate for the Petitioner relies upon a judgment of the Supreme Court in Ramesh Chand Ardawatiya vs. Anil Panjwani, (2003) 7 SCC 350. In Para-18 thereof, 3 wp-9557 the three grounds of setting up a counter-claim are stated. One is in the written statement itself. The wife herein has not shown how her counter-claim could be maintained upon the averments made in the written statement. 5.It is only upon prayer (b) in the written statement requiring the husband to perform his matrimonial obligation, that the issue came to be framed. Upon reconsideration of the pleadings, the learned Judge deleted the issue. Technically it is seen to be correctly deleted. 6.However, it may be mentioned that the spirit of the Family Court is not maintained either by the Judge or by both the parties. The purpose and spirit of the Family Court is to either settle the dispute by reconciliation or to determine the merits of the matter. This matter came up for adjudication. The trial was over. The matter was fit for answering the issues. There is absolutely no case for restitution of conjugal rights seeing the averments of the Petitioner herein in her written statement. The Judge could have proceeded to answer the issue in the negative. That would have been more in compliance with the requirement of the informality to be maintained by the Family Court. Instead the husband made a technical 4 wp-9557 application, however correct. The Judge has decided the same, though correctly. It may be mentioned that it would augur for the benefit of all the parties as well as the Family Court system itself if the Courts are not too technical and if they decide on merits because the same result would be achieved upon seeing the merits of the case of the parties but would bring the entire dispute to an end. 7.This petition is required to be dismissed because in law the issue is not required to be framed and the learned Judge has correctly deleted it. It would do well for the Family Courts to always proceed expeditiously for the ultimate relief to be determined on merits rather than encourage needless additional applications. 8.The petition is dismissed. (SMT.ROSHAN DALVI, J.)