FAO No. M-63 of 2010 -1- In the High Court of Punjab & Haryana at Chandigarh FAO No. M-63 of 2010 (O&M) Date of decision : 15.2.2010 Virender Kumar ..... Appellant vs Smt. Gyatri ..... Respondent Coram: Hon'ble Mr. Justice Rajesh Bindal Present: Mr. Suresh Kumar Chauhan, Advocate, for the appellant. Rajesh Bindal J. Challenge in the present appeal is to the judgment and decree dated 8.12.2009 of the learned court below whereby petition filed by the appellant under Section 9 of the Hindu Marriage Act, 1955 (for short, “the Act”), for restitution of conjugal rights, was dismissed. The appellant filed petition under Section 9 of the Act before the court below alleging therein that his marriage was solemnised with respondent in the year 1977 according to Hindu rites and ceremonies. The elder brother of the appellant, Narender Kumar, who is working in Electricity Board, Delhi, is married to the real sister of the respondent. At the time of marriage, the respondent was minor, therefore, her Muklawa/ Gauna ceremony was performed after five years. After Muklawa ceremony, the appellant and the respondent lived as husband and wife at Village Baund Kalan, Tehsil Charkhi Dadri, District Bhiwani. However, no child was born out of the wedlock. It is also alleged that at the time of her first visit to the matrimonial home, the respondent stayed there for about 4-5 days. Then she went to her parental home at Village Bagot. Thereafter, she did not turn up to her matrimonial home till date. It is also alleged that she is residing with Narender Kumar at Delhi since long and a daughter, namely, Rekha was born from his loin. It has also been alleged therein that brother of the respondent, who is serving in Haryana Police, has also connived with them. The appellant also took panchayat to the parental home of the respondent but she refused to join the company of the appellant. The appellant also averred that he has ailing mother who is suffering from paralysis and nobody is at home except him to look after her. He requested many times to his in-laws to send Gyatri to her matrimonial home but all in vain. In reply to the petition, the respondent denied all the allegations and submitted that she was not living with Narender Kumar, brother of the appellant rather she has always treated Narender Kumar like her father being the elder brother of the appellant. It has also been submitted that out of this wedlock Rekha was born on 5.11.1981. The respondent was turned out of the matrimonial home 3- FAO No. M-63 of 2010 -2- 4 years after the birth of the daughter. The daughter now stands married. The parents of the respondent bore the expenses incurred on the marriage of Rekha. The appellant has never performed his duties regarding maintenance of the respondent as well as his daughter Rekha. It has been alleged that the appellant is living in Delhi with Nirmala Devi with whom he has illicit relations. After considering the evidence led by the parties, the court below dismissed the petition filed by the appellant, who is now before this court. The appellant and his father Manohar Lal had admitted the Rekha to be daughter of Virender whereas in the petition filed under Section 9 of the Act, he has alleged that Rekha was born from the loin of Narender and out of their wedlock no child was born. For a woman against whom his husband is levelling allegations of character and disowning his daughter, it cannot be expected that she would live with him. It has also been recorded in the judgment of the court below that while appearing in the writ petition no. 214 of 1988 titled as Virender Kumar Sharma vs The State of Haryana, before Hon'ble the Supreme Court it came on record that she was maltreated and harassed by the appellant in one way or the other. After 3-4 years of the birth of Rekha and she was turned out from the matrimonial house after giving merciless beatings. To prove the allegations that the appellant is living with one Nirmala Devi, the respondent produced sufficient evidence before the court below which found favour with the court in concluding that the respondent wife had not withdrawn from the society of the appellant without any reasonable excuse. Further the petition for restitution of conjugal rights was filed by the appellant in the year 2007 wherein it was stated that marriage was solemnised in the year 1977 and the muklawa/gauna ceremony was performed after 4-5 years i.e. in the year 1982. It was alleged that after the first visit to the matrimonial home, the respondent stayed there for about 4-5 days and thereafter she went to her parental home at Village Bagot. According to him, the respondent wife had left the matrimonial home in the year 1982 itself. Neither he has bothered about his wife or daughter for about 25 years nor he has given any detailed reason for filing the petition for restitution of conjugal rights after such a long time. The learned court below after considering the act and conduct of the appellant on the basis of evidence produced has passed a well reasoned judgment. No ground is made out which may call for interference by this court in exercise of appellate jurisdiction. The appeal is dismissed. 15.2.2010 ( Rajesh Bindal) vs Judge