C/FA/3813/2021 ORDER DATED: 07/07/2026 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 3813 of 2021 ========================================================== DINESHBHAI JAGADISHBHAI MISTRY Versus KAVITABEN W/O DINESHBHAI MISTRY AND D/O ANANDRAV SHINDE ========================================================== Appearance: MR. JARJEESKHAN(7235) for the Appellant(s) No. 1 RULE SERVED for the Defendant(s) No. 1 ========================================================== CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA and HONOURABLE MR. JUSTICE R. T. VACHHANI Date : 07/07/2026 ORAL ORDER (PER : HONOURABLE MR. JUSTICE ILESH J. VORA) 1. This First Appeal under Section 19 of the Family Courts Act, 1984, is directed against the judgment and decree dated 31.08.2021 passed in HMP No. 205 of 2015, whereby, the Family Court at Surat, was pleased to dismiss the petition for restitution of conjugal right under Section 9 of the Hindu Marriage Act, 1955 (referred to as ‘the Act’ for short). 2. Brief facts leading to file this appeal are as follows: (i) The appellant husband had filed a petition under Section 9 of the Act, inter-alia, praying that, the respondent wife has without reasonable excuse, withdrawn herself from his society. The marriage of the parties was solemnized on 15.09.2010 at Surat and same came to be registered with concerned authority. During the wedlock, the parties blessed with a child – baby boy. They stayed together for about 7 years. According to case of the appellant C/FA/3813/2021 ORDER DATED: 07/07/2026 husband, the wife did not want to stay in a joint family and on petty issue, the quarrel between them arose on and often. In such circumstances, on 14.01.2017, without any reason, the respondent wife left the house and since then, she never returned to fulfill her obligation at the house of the appellant. She was served with notice on 06.03.2017, asking her to come back and fulfill and performed the conjugal rights. However, she did not respond to the notice, as a result, on 17.03.2017, a petition under Section 9 of the Act was being filed. The petition was contested by the respondent wife, mainly on the ground that, the marriage was not legal and valid, as at the time of registration of the marriage, the first marriage with one Sunita was subsisting. The other contention was raised that, the marriage was not solemnized in accordance with customary rights and ceremonies of either party. The third contention was raised that, the appellant husband suppressed and concealed his first marriage and in the marriage registration form, he stated his status as ‘unmarried’. In such circumstances, it is averred in the written statement that, when marriage is not valid, no decree for restitution of conjugal rights can be passed. (ii) The Family Court, after hearing the parties and considering the evidence on record, was pleased to dismiss the suit, observing that, the appellant husband failed to prove the factum of marriage and also failed to establish that, necessary ceremonies as required under Section 7 of the Act was performed. The learned Family Court, also took a note of the fact that, at the time of registration of marriage, the first marriage was in subsistence. Page 2 of 5 C/FA/3813/2021 ORDER DATED: 07/07/2026 3. In the aforesaid facts and circumstances, being aggrieved and dissatisfied with the dismissal of the suit, the appellant – original petitioner – husband, has preferred this First Appeal. 4. We have heard learned counsel Mr. Jarjeeskhan, appearing for and on behalf of the appellant herein. Though served, none has appeared for and on behalf of the respondent. 5. Mr. Jarjeeskhan, learned advocate, while assailing the judgment and decree has submitted that, the learned Family Court has gross erred in rejecting the petition, as for a period of 7 years, both the parties stayed together and one son is born out during the wedlock, which itself shows that, the marriage was legal and valid. That, before the Family court, the respondent wife, failed to appear in person and the evidence led by the petitioner – husband has not been challenged. That, the respondent wife was having knowledge about the first marriage and despite of this, she performed the marriage and took part in the registration process. That, after 7 years of the marriage, the respondent wife without reasonable excuse, withdraw herself from the society of the appellant. That, the suit filed by the respondent wife for obtaining a decree of declaration that her marriage with the respondent is null and void and void-ab-initio under Section 11 read with Section 5 of the Act, came to be dismissed on 03.05.2023. That, dismissal of the suit, would further prove that, the marriage of the parties is legal and valid and having considered the conduct and attitude of the respondent wife, the Family Court, ought to have directed the wife to perform the obligation on her part. Page 3 of 5 C/FA/3813/2021 ORDER DATED: 07/07/2026 6. In such circumstances, Mr. Jarjeeskhan, learned advocate has submitted that, the observations made by the Family Court, are not based on the evidence on record and contrary to the settled law and statutory provision of the Act and therefore, the findings are seems to be perverse and judgment and order of dismissal of the suit under Section 9 may be set aside and decree be passed for restitution of conjugal right. 7. We have carefully perused the case records and findings of the impugned judgment. Having regard to the facts of the case, the issue falls for our consideration, as to whether, the Family Court, Surat was justified in dismissing the suit filed under Section 9 of the Act? 8. In the facts of the present case, admittedly, this is the second marriage of the appellant. The first marriage with one ‘Sunita’ was not lasted for long time and by mutual agreement, they parted their ways. The appellant was running a clinic in the area where respondent was residing. The respondent was recruited as receptionist in the clinic. They developed intimate relationship and later on, they tied the knot and entered into marriageable relationship and same was registered on 15.09.2010. Admittedly, in the column of marriage registration form, the status of the husband was shown as ‘unmarried’. The first marriage was not dissolved by any competent court. It is not the case of the appellant that, due to custom prevail in their community, it is permissible to dissolve the marriage by mutual understanding. It is settled position of law that Hindu Marriage can be dissolved only in accordance with law, by C/FA/3813/2021 ORDER DATED: 07/07/2026 obtaining the decree of divorce from the Court. In absence of any decree of divorce, the first marriage remains in subsisting. Therefore, in our opinion, an application for restitution of conjugal right is not maintainable if there is no valid marriage in the first place. In the present case, the appellant failed to prove the factum of valid marriage with the respondent herein. It is no doubt true that the parties had lived together as husband and wife for 7 years and more but the fact remains that, the appellant had already married at the time of entering into marriage with the respondent herein. The suit filed by the respondent for declaring the marriage null and void, came to be dismissed, mainly on the ground of delay. The Family Court, while dismissing the suit, has not dealt with the issue of validity of the marriage, as claimed. In such circumstances, we are of the view that, the trial Court has rightly dismissed the suit for restitution of conjugal rights, as the application could be made only against wife or husband, as the case may be, when the marriage, is in accordance with law. 9. For the reasons recorded, we do not find any ground to interfere with the findings recorded by the Family Court. 10. In the result, Appeal fails and is dismissed. There shall be no order as to costs. (ILESH J. VORA,J) (R. T. VACHHANI, J) P.S. JOSHI/08.07.2026 Original copy of this order has been signed by the Hon'ble Judges. Digitally signed by: PALLAV SUBHASHCHANDRA JOSHI(HC00177), Principal Pvt. Secretary, at High Court of Gujarat on 08/07/2026 16:02:41