HIGH COURT OF CHHATTISGARH AT BUASPUR DWISION BBNCH: HON'BLE SHRI T. P. SHARMA flk HON'BLB 8HRI R.L. JHANWAR. JJ. FIRST APPEAL (Mt No. 74/2009 Ajay Mundada S/o late Shri Gaurishaakar Mundada, aged about 35 years, Resident of Kunkuri Tahsil Kunkuri, District Jaspur Nagar (CG) APPBLLANT RE8PONDBNT Versus Snit. Mamte. Mundada ayeA about 31 years, Resident of Gaajpara Durg Tahsil aad District Dui^ (CG) First Appeal under Sertion 19 (1) ofthe Famtty Co'urts Act, 1984 Piesen.t: Shri R.S. Patel, counsel for fhe appcUant. Shri M.K. Bhaduri and Shri P.K. Ttdsyan, oounsel for the respondent QK&L- JUDGMBMT (Passed on 16th Jime, 2010) The foUowiag judgmeut of fhe Court was passed by T. P. Sharma, J. 1. ChaUenge ia this appeal is to fbe judgment and dccree dated 12.12.2008, passed by fhe Principal Judge, Fanuty Coiirt, Durg (CG) in CivU Suit No.312-A/2008, whereby, fhe petition filed by th.e respondent iinder Section 9 of fhe Hiadu Marriage Act, 1955 (in short the Act) for restitution of coajugal rights has been aUowed, /.'f "•'€%. i' "'Wfe, •A,..-_J "'^^ ..„- ~"'^£3^s5 f 2. Thc judgnient and decree is cfaallei^ed on the ground that whik allowmg ftie claim of the respondent hereia, Court below lias not considered fhe ground for liying separately, raised by fhe appeUant/husbaad in his repty and fhcreby committed iUegaUty. 3. Brief facts necessaiy for disposal of this appeal are that the parties are Hiadu legaUy wedded spouses. Their marriage was soleuuuzed on 18.2,99. Partics are haviag 2 children out oftheir wedlock. As per pleadings of the respondent, appeHant was not aUowiag the respondent to Uve wifh him and he has failed to dischai^e his niarital obligation. Oa the aforesaid groiind, the respondent has filed fhe petition iinder Section 9 of fbe Hiadu Marriage Act for restitution ofconjugal rights. 4. The appeMaat has dciued the atle^ations raised in thc petitiou and speci&calty alleged fhat fhe respondent is STififenng from mental disorder aad on fhe ground of such disorder, he bas ffled the sziit for dissohition of marriage by a decree of divorce before fhe District Judge, Jashpur. 5. On fhe basis of averments of the parties, issues were feained and after providing opporturuty of hearing, Court toetow has decreed fhe suit for restitution ofconjugal r^hts. 6. We have heard Shri R.S.Patel, leamed counsel for the appellaat and ShriM.K.Bhaduri aad Shri P.K. Tulsyan, learaed counsel for flie respondent aad perysed ftie impugned judginent aad decree. •"•f 7. Learded counsel for fhe appeUaat vehemently argucd fhat respondent is suffering &OTCL mental disorder and inental disease ""s"l. ^) and ftie appeUaat has filed fh.c szut for dissolution of marri^e by a decree ofdivorce on fhe ground ofinental Ulness/disease ofthc respondent before fhe Court of District Judge at Jashpur. After receiviag the notice of the ssad petition, respondent has filed the petitiou for restitution ofconjugal rights, which has been aUowed. He subinite tliat Uviug with fhe respondent u not just and reasonable. 8. On the ofher hand, leamed counsel for the respondent vehemenfly opposed the petition aad submit that the appellant has aUeged fhat the respondent is sufFering fl?om mental fllness, but he has not examuied fhe Doctor or has not produced auy document in support of his claiin. The appeUaut bimself has adinitted that he is not ready to keep the respondentwifh him. 9. After appreciating fhe cvidence, Court below has aUowed the claim of the respondent. 10. In oider to appreciate the argunieats advaaced on behatf of ftie parties, we have examiaed the evidence adduced on behsdf of fhe pardes. Evidence of bofh the parties revealed that both the parties arc Uvnig separatefy siace a considerable time. As pcr the evidence of the appellaat, respoudent is suffcring fix>ia inental disease aud he is not ready to keep the respondent with him and the reason is best known to huu. He has not fited any docunient relating to inedical examiuation or inental illness. Even he has aot examiaed aay Doctor in support of liis claim petition. Learaed counsel for the appellant Shri R.S. Patel has argucd that he has filed such document ia his divorce'petttion. 11. In absence of such evidence aad after appreciating fhe evidence available on record, learaed Judge of fhe Family Coiut :*?i^ n;si~'*t. fl -il 1'%1 B!^ ° % '''^i'^Sf, ^^J. has aUowed fh.e claiin petition of fhe respondent. filed for restitution of conjugal rights. Coiut bclow has rightty ^lowed and decreed the petition. We do not find illegalily or infirmily in fhe judgment aad decree impugaed. 12. Consequentty, fhe appeal beiag devoid of inerits is liable to be and is hereby disinissed. 13. Parties shaU bear their omn cost Advocates' fee as per schedule. A'tvn'T*1 14. A decree be drawn accordiaigty. Sd/- T.P. Sharma Judge Sd/- R.L. Jhaiiwar Judge