/E^, IW IN THE HON'BLE HIGH COURT OF JUDICATURE AT BILASPUR (C.G.l F.A.(MINO. ^ /2009D.B. C.F ^J- ApRellant Applicant ^ ®s .^^ »^ .,.¥/'v"7'/ .;&.•»* a'Aii ""1. /f^Ji* VERSUS RESPONDENTS N6n-Apolicant Nitin Dixit S/o Shri Mohan Prasad Dixit, aged about 30 years, Occupation-Government Service, R/o Housing Board Colony Saddhu No. 821, Sector-5, Post-Saddhu, P.S. Pandri, Distt. Raipur (C.G.) Smt. Poonam Dixit, W/o Nitin Dixit, aged about 28 years, Resident of C/o Father Shri B.B. Shukla, Advocate Daulat Ganj, Near Sadabahar Poha Bhandar Mohan Singh Ka Bada, Gwalior, Distt. Gowalior (M.P.) APPEAL U/S 19 OF THE FAMILY COURT ACT READ WITH SECTION 28 OF THE HINDU MARRIAGE ACT ::^K %3 <r.-'.., ^ HIGH COURT OF CHHATTISGARH AT BILASPUR DB: Hon'ble Shri Justice I.M. Quddusi and Hon'ble Shri Justice PrashanlKymar Mishra First Appeal (M.) No.39 of 2009 Nitin Dixit versus Smt. Poonam Dixit JUDGMENT FOR GQNRSDERATION \^ /]/ i Sd/- prashant kumar Mishra Judge Hon'ble Shri I.M. QuJdu^L J^: Sd/- I.M.Quddussi Judge Sri./- Prashant Kumar Mishra Judge y^s^ 's* HIGH COURT OF CHHATTISGARH AT BILASPUR 1^ ', D.B.: Hon'ble Shri Justice I.M. Quddusi and Hon'ble Shri Justice Prashant Kumar IVIishra First Appeal (M.) No.39 of 2009 Appellant Respondent versus Nitin Dixit Smt. Poonam Dixit '•Y Present: Shri Ali Asgar, counsel for the appellant. Shri Parag Kotecha, counsel for the respondent. Appeal under Section 19 ofthe Familv Courts Act read with Section 28 of the Hindu Marriage Act JUDGMENT (Deliveredon Olo^ April,2011) fer <Prasluint 'Kimiar Misfira, ]:. Challenge in this appeal under Section 19(1) of the Family Courts Act, 1984 (henceforth 'the Act, 1984') is to thejudgment and decree passed by the 1 Additional Principal Judge, Family Court, Raipur dismissing the appellant's application under Section 9 of the Hindu Marriage Act, 1955 (henceforth 'the Act, 1955') for restitution of conjugal rights. 2. Undisputedly, the parties to the proceedings were married on 24-2-2007 and they have a son Master Harshit, who was born out of the wedlock on 25-11-2007. The son Master Harshit is presently residing.with his mother/respondent at Gwalior. 3. The appellant preferred the subject application under Section 9 of the Act, 1955 on the pleadings inter alia that because of his ^,...,.0.^..:«,.^..J respondent were residing together at Avantika Colony, Jagdalpur, where Master Harshit was born on 25-11-2007. According to the appellant/husband, the respondent/wife always commented and passed sarcastic comments on the living standard ofthe appellant's family and was showing utter disrespect to the elders. She was not willing to beget the child immediately after the marriage and insisted upon using her surname 'Shukla', which was her surname before the marriage. She was trying to seek employment byconcealing the fact to the appellant and was absolute non-cooperative in the family. She went to Gwalior for delivery, however, even after delivery, she stayed back at Gwalior and because of influence of her parents, she always desired to live at Gwalior. With much insistence, she came to Jagdalpur, however, her behaviour did notchange and she again started saying that she wants to seek employment in Madhya Pradesh. In the meanwhile, the appellant was transferred to Poiice Academy at Chandrakhuri, Raipur in July, 2008 and at this point of time, the respondent again went to her parental house at Gwalior and has never come back to live with the appellant thereafter. It is furtfcier stated in the application that she is not picking-up telephone and has adopted an attitude of absolute non-cooperation. Her father is supportive of her and has threatened the appellant of implication in false criminal cases. 4. The respondent/wife filed her reply/preliminary objection. According to the respondenVwife, name of the son born out of the wedlock is Pranshu Dixit and not Harshit Dixit, as stated by the appellant. She admitted that she is desirous of obfaining -] • employment, however, allegations regarding non-cooperative and indifferent behaviour were denied. She stated that she was selected on the post of Shiksha Karmi Grade-11 at Jagdalpur, but the appellant did not allow her to join the services. She further stated that she came to Gwalior for delivery as per custom and to avail better medical facility because the appellant was not taking her to doctor at, Jagdalpur. In substance, the respondent denied the contents of the application and thus denied the fact that she has failed to perform her marital obligations without anyjustifiable cause. 5. The family Court, on the basis of material available on record, came to the conclusion that the appellant has failed to prove that the respondent has withdrawn from the society of the appellant without reasonable excuse. The appellant has moved an application I.A.No.3 under Order 41 Rule 27 of the Code of Civil Procedure, 1908 for taking additional documents on record. Along with the application, the appellant has filed copy of the information supplied to him by the Professional Examination Board, Bhopal and some photographs. The documents (Annexure D-1) are about the effort made by the respondent to seek employment by appearing in the recruitment for Shiksha Karmi conducted by the Professional Examination Board, Bhopal. These documents (Annexure D-1) and the photographs of the child (Annexures D-2 and D-3) along with letter written by the Superintendent of Police, Betul to the Superintendent of Police, Jagdalpur filed as Annexure D-4 handing over the complaint lodged by the respondent against the appellant against commission of cruelty by demanding dowry, are not material for deciding the present appeal. The documents are old and yet s ^;is* -"•-f. there is no acceptable justification as to why these documents were not submitted in course oftriat. No case for permitting the appellant to file additional documents is made out and hence the application I.A.No.3 is rejected. 6. From the evidence available on record, it is apparent that the respondent was appointed on the post of Shiksha Karmi by Zila Panchayat, Jagdalpur. However, she was not allowed to join the services. She has also preferred an application under Section 125 of the Code of Criminal Procedure before the Family Court, Gwalior. The appellant's conduct of not allowing the respondent/wife to join the services of Shiksha Karmi Grade-11 by itself furnishes a reasonable excuse to the respondenVwife to withdraw from the society of the appellant. The family Court has discussed the material on record and has reached the conclusion that no case for grant of application under Section 9 of the Act, 1955 is made out. Having gone through the material available on record, this Court is unable to accept the arguments of learned counsel for the appellant that the findings recorded by the Court below are perverse. 7. Consequently, this Court does not find any substance to interfere in the impugned judgment and decree passed by the Court below. The first appeal, therefore, fails and is hereby dismissed. There shall be no order as to costs. l^ £ 8. A decree be drawn-up accordingly. Gopal "\ Sd/- I.M.Quddussi Judge Sd/- prashant kumar Mishra Judge