2025:JHHC:13556-DB 1 IN THE HIGH COURT OF JHARKHAND AT RANCHI F.A. No. 119 of 2024 --------- Sitaram Ram, aged about 44 years, son of Late Madan Ram, resident of Village- Leda, P.O.-Leda and P.S.-Giridih (M), District-Giridih. .…… Appellant Versus Priti Devi, wife of Sitaram Ram, daughter of Sunil Ram, resident of Village + P.O. Gandey Purana Bazar, Near Durga Manda, P.S.-Gandey, District-Giridih. ……. Respondent --------- CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE MR. JUSTICE RAJESH KUMAR ---------- For the Appellant : Mr. Rajesh Kr. Mahtha, Advocate For the Respondent : None ----------- 06/Dated: 06th May, 2025 1. The instant appeal under Section 19(1) of the Family Courts Act, 1984 is directed against the judgment dated 20.03.2024 and decree dated 03.04.2024 passed by the learned Additional Principal Judge, Additional Family Court, Giridih in Original Suit No. 164 of 2020, whereby and whereunder, the application filed under Section 9 of the Hindu Marriage Act for restitution of conjugal right, has been rejected. 2. The brief facts of the case as per the pleading made in the memo of appeal as has been narrated in the impugned judgment is required to be referred herein, which read as under: The first marriage of the appellant Sitaram Ram was solemnized with Anju Devi and blessed with four children. After the death of first wife, the appellant solemnized second marriage with the respondent, namely, Priti Devi and blessed with one girl, namely, Pari Kumari on 06.04.2017. They lived together as husband and wife peacefully, however, after 14 months, the respondent went to her naihar stating that she will return in 7-10 days but after laps of 15 days, the respondent could not return to the matrimonial home. Then the appellant went to her sasural but the respondent refused to come with him, and thereafter, the appellant filed TMS Case No. 163 of 2017 on 05.07.2017. In the meantime, the family members of the respondent threatened the appellant, therefore, he filed a Snha in the CJM Court, Giridih. In the said TMS Case No. 163 of 2017, mediation has been held in between the parties and the said case was compromised and it was decided that both the parties get separated and it was also decided that the appellant could meet his 2025:JHHC:13556-DB 2 child, Pari Kumari, but when the appellant went to meet her child, the respondent and her family members did not permit him to meet his child. On 24.03.2020, when the appellant went to the house of the respondent to meet his child, then the father of the respondent, uncle Birendra Ram, Ravi Ram and Rajesh Ram all threatened him for dire consequences and they forcibly took the thumb impression of the appellant on a plain paper and they threatened him to never come back to meet his child. 3. It is evident from the factual aspect that the appellant has solemnized marriage with the respondent and a female child has taken birth from their wedlock. It appears from the factual aspect that after the solemnization of marriage, one title matrimonial suit being TMS Case No. 163 of 2017 was filed which was disposed of in terms of the settlement arrived at in between the parties in the mediation wherein the parties have agreed to live separately. Subsequent thereto, the present application was filed under Section 9 of the Hindu Marriage Act seeking restitution of conjugal rights. 4. The learned Family Judge had issued notice to the respondent-wife but she has chosen not to appear. The matter proceeded ex-parte. The learned Family Judge has allowed the witnesses to be examined on behalf of the appellant-husband and altogether three witnesses have been examined including the appellant. 5. The learned Family Judge, after taking into consideration the order passed in the TMS Case No. 163 of 2017 and also by taking note of the fact that the appellant has failed to demonstrate any act of matrimonial misconduct committed by the defendant and further the appellant himself has been found guilty of matrimonial misconduct, therefore, has refused to allow the said application filed under Section 9 of the Hindu Marriage Act which is the subject matter of the present appeal. 6. Mr. Rajesh Kr. Mahtha, learned counsel for the appellant has submitted that the learned Family Judge has not taken into consideration the fact in entirety said to be in right perspective since the evidence of the witnesses which has been recorded in course of the trial, has not been taken into consideration properly. 7. Learned counsel has further submitted that the husband has tried to conciliate for living together for the purpose of taking care of the female child but it is the respondent who has not agreed for the same rather has refused to respond to the said issue but these aspects of the matter have not been taken into consideration. 2025:JHHC:13556-DB 3 8. This Court has also issued notice upon the respondent as would appear from the order dated 25.02.2025. The service report is there as available at Flag-X which has been taken note in the office note dated 05.05.2025 wherefrom it is evident that the notice has been received by the father of the respondent. The service report reflects that the father has received the notice since the daughter, the respondent herein, was not available in the house. It has further been taken note that the respondent is living along with his father. 9. The Court, considering the aforesaid fact, is of the view that since the notice has been received by the father of the respondent who is living with her father, as such, she is having knowledge of the pending proceeding before this Court but even then the respondent has not appeared. Therefore, this Court has proceeded to hear the matter on merit. 10. This Court has appreciated the argument advanced on behalf of the appellant and has found that altogether three witnesses have been examined on behalf of the appellant wherefrom it is evident that the marriage of the appellant and the respondent is the second marriage which is after the demise of the first wife from which four children have been shown to be there. The marriage of the appellant and the present respondent has been solemnized and from their wedlock, a female child has taken birth. 11. Subsequent to the marriage, dispute arose and in consequence thereof, one Title Matrimonial Suit being TMS Case No. 163 of 2017 was filed. It appears from the reference of the outcome of the said TMS Case No. 163 of 2017 which has been closed on the basis of the agreement arrived at in between the parties to the effect that both the parties have agreed to live separately as has been taken note by the learned Family Judge at paragraphs-16 & 19 of the impugned judgment. 12. The appellant after the disposal of the said title matrimonial suit being TMS Case No. 163 of 2017 has again filed an application being Original Suit No. 164 of 2020 for restitution of conjugal rights. 13. The learned Family Judge as taken into consideration the settlement arrived at in between the parties in TMS Case No. 163 of 2017. It is evident from the paragraphs-16 & 19 of the impugned judgment that in the title matrimonial suit being TMS Case No. 163 of 2017 has been closed on the ground that both the parties have agreed to live separately and to that effect, an affidavit was also filed on behalf of both the parties. 2025:JHHC:13556-DB 4 14. The ground to live separately has been referred that the respondent with her minor daughter is not ready to reside with the appellant. It has also been taken note that it is also clear from the version of the appellant that both the parties were ready not to interfere in life of each other before the Panchayat. 15. The learned Family Judge, therefore, has taken the aforesaid reason as has been agreed in between the parties for dismissing the application filed under Section 9 of the Hindu Marriage Act. Section 9 of the Hindu Marriage Act stipulates that where either of the party, i.e., the husband or the wife has, without reasonable excuse, withdrawn from the society of the others, the aggrieved party may apply, by petition to the District Court for restitution of conjugal right. 16. The stipulation so made particularly the reasonable excuse for withdrawal from the society is having bearing in adjudication of the application filed under Section 9 of the Hindu Marriage Act and the same is required to be proved and for which, burden of proving the reasonable excuse shall be upon the person who has withdrawn from the society. 17. This Court, considering the fact that the parties have agreed in the earlier round of litigation, i.e., TMS Case No. 163 of 2017 as also the appellant has failed to discharge his obligation towards his wife and his minor child and keeping the aforesaid fact into consideration, Section 9 application has been rejected by passing the impugned judgment which according to the considered view of this Court, cannot be said to suffer from error. 18. Accordingly, the instant appeal fails and stands dismissed. 19. Pending interlocutory application(s), if any, also stands disposed of. (Sujit Narayan Prasad, J.) (Rajesh Kumar, J.) Saurabh/- A.F.R.