BHATI, J. - (1.) This civil misc. appeal under Section 19 of the Family Courts Act, 1984 read with Section 28 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act') has been preferred against the judgment and decree dated 09.10.2013 passed by learned Judge, Family Court, Rajsamand in Civil Misc. Case No.57/2012, whereby the learned court below has allowed the application filed by the respondent under Section 9 of the Act.
(2.) Brief facts of the case, as noticed by this Court, are that the respondent (applicant) preferred a petition for restitution of conjugal rights against the appellant (non-applicant) on the ground that the marriage between them, which was solemnized forty years ago and out of the said wedlock, two children were born, has been disturbed due to the cruel behaviour of the appellant towards the respondent. It was alleged by the respondent that she has been ousted from the house of the appellant and is residing at her parental house for last 6-7 years. The respondent also alleged in the application filed under Section 9 of the Act that the appellant was having adulterous relationship and should be compelled to restore her conjugal rights.
(3.) The appellant however, has taken a stand that he had taken customary divorce from the respondent, and since there was no surviving relationship between both the parties, therefore, the application under Section 9 of the Act could not be maintained. The appellant also submitted that the respondent by her voluntary conduct had decided to live apart from the appellant.;