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Decree granting restitution of conjugal rights can be denied without a justifiable cause: High court of Calcutta

In absence of any cogent or corroborative evidence in support of the claim of the appellant, it can be held that the appellant deserted the respondent without any justifiable cause. This was decided in the case of Mousami Sarkar vs. Subhendu Sarkar [F.M.A.T. 624 OF 2016] by Hon’ble Justice Arindam Sinha and Hon’ble Justice Suvra Ghosh in the High Court of Calcutta.

The facts of the case are that the parties were married according to Hindu rites and after a few days the appellant created pressure upon the respondent to reside in her house as “Ghar Jamai” and started visiting her parental home frequently. She was always reluctant to return to her matrimonial home. The respondent/husband was, therefore, constrained to file the application under section 9 of the Hindu Marriage Act, 1955, before the learned trial court praying for restitution of conjugal rights. the trial court, by the judgment impugned, decreed the suit in favour of the respondent/husband. Being aggrieved by the said judgment and decree, the appellant/wife has preferred the present appeal praying for dismissal of the suit before the learned trial court.

The counsel for the respondent/husband has supported the impugned judgment and has submitted that the appellant left her matrimonial home with the daughter voluntarily and without any justifiable cause and he is ready and willing to resume marital life with her.

The court put reliance on the case of Anuradha Samir vs. Vennangot Mohandas Samir (2015) 16 SCC 596 where in it was held “the appellant left her matrimonial home with the daughter voluntarily and without any justifiable cause and husband is ready and willing to resume marital life with her, then respondent is directed to resume her conjugal life with the 5 petitioner husband within one month from the date of this order.”

She has stated that her husband inflicted severe mental torture upon her three year old daughter and herself and they were made to reside in a tin shed room for which they fell seriously ill. As the respondent was reluctant to provide medical assistance to the 8 child, she went back to her parental home with her daughter. She once intends to resume conjugal life with her husband, again says that she will do so only if her husband resides with her in the property gifted by her father. It was further stated that the medical certificate does not inspire confidence of this court. no impediment to hold that no case has been made out by the appellant to indicate that she was constrained to leave the respondent or was rather driven out of his house and did not withdraw from his society without any reasonable cause.

The court finally stated that in absence of any cogent or corroborative evidence in support of the claim of the appellant, it can be held that the appellant deserted the respondent without any justifiable cause. It was also observed that her allegation of cruelty is not substantiated by sufficient evidence. The appeal is devoid of merit and be dismissed.

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