IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.694 of 2009 MD. ENAMUL HAQUE SON OF LATE MD. WASIMUDDIN, R/O OF VILLAGE- BANSITIKAR, P.S. SABOUR, DISTRICT- BHAGALPUR………………………PLAINTIFF… APPELLANT Versus 1. BIBI REXONA DAUGHTER OF LATE MD. NASIMUDDIN AND WIFE OF MD. ENAMUL HAQUE, R/O VILLAGE- BANSITIKAR, P.S. SABOUR, DISTT- BHAGALPUR.. 2. MD. ASGHAR ALI SON OF LATE MD. WASIMUDDIN, R/O VILLAGE- BANSITIKAR, P.S. SABOUR, DISTRICT- BHAGALPUR…….. DEFENDANT/ RESPONDENTS ----------- 15 10-2-2011 Heard learned counsel for the appellant and learned counsel for the respondents 1 and 2. This appeal has been preferred against judgment and order dated 28-1-2006 whereby the learned Principal Judge, Family Court, Bhagalpur has dismissed Title Suit no. 1 of 2004 preferred by the appellant for getting a declaration that respondent no.1 is his legally wedded wife and a decree for restitution of conjugal rights. From the impugned judgment it transpires that even on receipt of summons the respondents did not appear in the court and did not contest the claim of the appellant. It further transpires that the appellant had examined himself as a witness along with some other persons who are P.Ws.2 and 3. 2 The learned Family Court considered the evidence but held that it does not inspire confidence. It further held that Family Court does not have jurisdiction to declare respondent no1, Bibi Rexona to be wife of the plaintiff Enamul Haque (appellant herein ) on the ground that such relief cannot be granted in a case for restitution of conjugal rights. In spite of order passed by this Court the respondent no.1, wife of the appellant has not appeared in court. Learned counsel for the respondents submitted on instruction, that respondent no.1 is prepared to live with the appellant as his wife provided he keeps her and her children with himself at his place of work in Jharkhand and not at his ancestral home in district- Bhagalpur. Learned counsel for the appellant submits that the appellant is present in court as per direction of the court and he is ready to keep respondent no.1 with him at his place of working with due honour. According to him the sister of the appellant is married with brother of respondent no.1 and it is very disturbing for him that because of differences between him and respondent no.1 appellant’s sister is not getting good treatment from respondent no.2 and she has been sent to her parents house. 3 From the submissions advanced on behalf of the parties, it is clear that relationship of husband and wife between the appellant and respondent no.1 is not disputed. In that view of the matter, it is no longer necessary for this Court to decide the issue whether Family Court has jurisdiction to grant the declaration as sought by the appellant in the suit. In view of aforesaid findings that appellant and respondent no.1 are husband and wife, now the issue to be decided is whether the appellant should be granted the relief of restitution of conjugal rights or not. That also appears to have been resolved largely because the condition, spelt out on behalf of respondent no.1 that she should be kept by the appellant at his place of working at Jharkhand has been accepted by the appellant. Hence, the prayer for restitution of conjugal rights made on behalf of appellant ( plaintiff) is allowed with a condition noticed above to which both the parties have agreed. The impugned judgment and order are, therefore, set aside and the appeal is allowed. There shall be no order as to costs. naresh ( Shiva Kirti Singh, J.) ( Gopal Prasad, J) 4