Kailash Prasade Deo, J.
1. Heard learned Counsel for the parties.
2. The instant appeal has been preferred by the husband/petitioner/appellant against the dismissal of the suit for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 vide order dated 22.12.2016 passed by learned Principal Judge, Family Court, Bokaro, in O.S. No. 64 of 2016.
3. The brief facts of the case are that marriage between the appellant/petitioner (Manoj Kumar Mishra) and the respondent/defendant (Snehlata Choudhary) was solemnized on 6.3.2006 as per Hindu Rites and Customs at the residence of father of respondent-wife at Jamtara. After marriage, the respondent-wife went to Bokaro on 7.3.2006 and started living conjugal life at the house of appellant/petitioner at Bokaro as husband and wife. From the said wedlock, they have been blessed with two daughters, namely, Aradhya and Purnima who are aged about 9 years and 1 years 3 months respectively at the time of filing of the application in the year 2016.
As per the case of the appellant/petitioner, he is working as English Teacher at D.A.V. Public School, Bokaro, whereas the respondent/defendant is working as Para-Teacher under the Government of Jharkhand posted at Jamtara i.e. native place of respondent/defendant.
It is stated that for 2 years, the matrimonial ties was cordial. Thereafter the respondent/opposite party pressurized the appellant/petitioner to leave his job and settle at Jamtara by starting tuition as her job is a permanent job, whereas, the appellant/petitioner is doing a private job, which was not acceptable to the appellant/husband. Thereafter a case was filed against the husband under Dowry Prohibition Act at Mahila Police Station, Jamtara vide No. 41 of 2012 under Sections 498A, 504 and 34 of the Indian Penal Code. The same ended in compromise because of conciliation between the parties on the basis of the joint compromise petition. The case under Section 498A was thus, disposed of.
4. It is further stated that on 10.2.2014, the appellant brought his wife/respondent to his house where she lived for ten days and thereafter on the pretext of job, returned and refused to come and finally left her ‘sasural’ on 14.11.2014. Even after persuasion by the husband and his family members, she did not come nor showed any willingness to live with him though the husband is agreeable to live with his wife and children. The father of appellant has already died and the sisters have been married who are residing at their respective sasurals. The brother is working somewhere else and the husband/appellant/petitioner is residing with his old mother, as there is no other person to look after her. As such, appellant/husband wants to live with his wife and has made prayer for restitution of the conjugal rights.
Notice was issued by the learned Court below under ordinary process as well as through Postal Department, but she did not appear. Thereafter, substituted service of notice through paper publication in ‘Dainik Bhaskar’ Dhanbad edition was issued. Even then the respondent/defendant did not appear before the Court nor filed any written statement. As such, the case was fixed ex parte on 27.7.2016.
The Family Court, Bokaro framed the following issue “whether wife/defendant without any valid reason has refused to live and discharge conjugal relationship with husband/appellant”, as such, husband/appellant is entitled for decree of restitution of conjugal rights.
The appellant/petitioner/husband has examined three witnesses, namely, Manoj Kumar Mishra as P.W.1, Shiv Laxmi Devi-mother as P.W.2 and Raj Narayan Jha, a neighbour cum friend as P.W.3.
5. Since the respondent/defendant has not appeared before the Court below, the Court on the basis of the evidence brought on record, observed that both husband and wife are working at two different places, as the respondent-wife is in the Government service and the husband is in the private job and the husband has taken recourse of Section 9 of the Hindu Marriage Act. The Court held that the appellant/husband has failed to prove that respondent-wife has refused to maintain conjugal relationship rather because of job which she does not want to leave, she could not live with the husband, but it does not mean that she has completely refused to maintain conjugal relationship.
The appellant/husband being aggrieved of the same, preferred the present appeal. Notice was issued on 12.9.2017. The undelivered cover with AD was returned with an endorsement that “adressee not found” and thereafter substituted service of notice was issued. Pursuant thereto, the appeal was admitted after condonation of delay. Wife appeared after admission of the Appeal through her Counsel. The matter was referred before the learned Mediator, JHALSA for amicable settlement between the parties, but mediation failed.
6. Learned Counsel for the appellant has assailed the impugned order on the ground that the husband has intention to continue matrimonial relationship with the wife. As such, even after disposal of the criminal case initiated by the wife/respondent under Section 498A, I.P.C. in terms of the compromise he has chosen the forum under Section 9 of the Hindu Marriage Act for restoration of conjugal rights. Learned Counsel for the appellant has further submitted that the appellant has to look after his old mother as nobody is there in the family to look after her. The father of the appellant has already died and the sisters have been married, who are residing at her respective sasurals. The brother has settled somewhere else and the appellant is doing his job at D.A.V. Public School, Bokaro though temporary, but cannot leave the job and take his mother to his sasural at Jamtara.
7. Learned Counsel for the appellant has further submitted that their marriage has been blessed with two daughters. The appellant has never pressurized his wife to leave the permanent job of Para-Teacher at Jamtara, but she can maintain the conjugal relationship by coming to Bokaro and vice-versa he can go to Jamtara, but on the ground of job, a matrimonial tie cannot be broken.
8. Learned Counsel for the appellant has further submitted that he will never pressurize the respondent-wife to leave the job, but on the other hand, she has social and marital responsibility towards the appellant/husband also. The appellant as well as his mother cannot be debarred from the affection of his daughters who are grand-daughters of his mother. As such, conjugal rights may be restored while doing their jobs at their respective places, but in the interest of their family.
9. Learned Counsel for the respondent-wife has submitted that wife is also interested for restitution of conjugal rights, but she will not leave her source of livelihood which is a permanent job under the Government of Jharkhand as Para-Teacher posted at Jamtara. Learned Counsel for the respondent-wife has further submitted that she is ready to discharge her duty as wife and also as daughter-in-law, but not at the cost of her service. She has submitted that respondent is ready to restore the conjugal life during vacations from the school by going to Bokaro and vice-versa, husband may come to Jamtara, but in that process neither she will ignore the matrimonial relationship nor debar them from the affection of his daughters.
10. After hearing learned Counsel for the parties and perusing the materials brought on record, it appears that in the present day both the parties are working at different places and none of the parties can leave their source of livelihood. None of the parties want to break the marriage. The only condition is that respondent-wife wants to continue her permanent job at Jamtara which is also not opposed by the
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husband. Considering such aspect of the matter, this Court finds it proper that the appeal preferred by the appellant/husband against the dismissal of his application under Section 9 of the Hindu Marriage Act, 1955 be allowed. Accordingly the same is allowed with condition that both the parties are free to work at their working places i.e. Bokaro and Jamtara respectively. None of the parties will pressurize the other party to leave the job and both will co-operate in maintaining and restoring family life during vacations and other leisure period which is beneficial for the family and both the daughters. 11. In the light of the discussions, made herein-above, the order dated 22.12.2016 passed by learned Principal Judge, Family Court, Bokaro, in O.S. No. 64 of 2016 is set aside. The instant appeal is allowed. Decree accordingly. Appeal allowed.