1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE FAMILY COURT APPEAL NO.20 OF 2006 Mrs.Rizawana Rashid Pathan : Appellant (Orig. Respondent) V/s. Mr.Rashid Adam Pathan : Respondent (Orig. Petitioner) .... Mr.Ashok B. Tajane for the appellant. Mr.Vijay Killedar for the respondent. .... CORAM : S.A. BOBDE & S.J.KATHAWALLA, JJ. DATE : NOVEMBER 30, 2009. P.C.: 1. This is an appeal filed by the wife against the judgement and order of the Family Court, Pune, dated 23.12.2005 granting a decree of restitution of conjugal rights in favour of the respondent-husband and directing the appellant to resume cohabitation with him within 15 days from the date of the order. 2. It has not been possible for us to bring about any reconciliation between the parties since, according to the learned counsel for the 2 appellant, she is too scared to appear in Court because of her husband’s nature and apprehends danger to her life. That apart, having heard the matter, we are of opinion that the judgement in appeal needs to be interfered with for the following reasons and the matter needs to be remanded back to the trial Court. 3. The parties got married on 4.5.1986 according to Muslim religion. They have three children from the wedlock. Since the appellant stopped cohabiting with the respondent, after the statutory period, the respondent filed a petition for restitution of conjugal rights. According to the respondent, the appellant started residing at her maternal house without any reason. The appellant, however, resisted the respondent-husband's case and set out various instances of cruelty such as being asked to consume anacin tablets forcibly and having her character continuously suspected. According to the appellant, the respondent used to forcibly keep the doors and windows of the house closed while he was away and if he found that they were opened, he would assault her. There seem to be several instances of beating and assault of which the appellant has made a grievance and has tried to justify her staying away from the husband. 4. We, however, find from the order of the Family Court that the evidence has not been considered at all. In fact, the learned Family Court 3 has decided the matter by making a mere observation that the appellant failed to prove that the respondent treated her with cruelty. We are of opinion that the issue of cruelty raised by the appellant is germane to the case and the matter could not have been decided without adjudicating on the allegations. 5. In this view of the matter, we set aside the judgement of the Family Court and remand the matter back to the Family Court for a fresh decision, in accordance with law. The Family Court is directed to decide the matter within three months from the date the parties appear before it. The parties are directed to appear before the learned Family Court on 15.12.2009. The appeal stands disposed of. (S.A. BOBDE, J.) (S.J. KATHAWALLA, J.)