- (1.) This misc. appeal has been filed by the appellant /non- applicant-wife ('the non-applicant- wife' for short) under section 19 of the Family Court Act against the judgment and decree dated 12.05.2017 passed by learned Family Court, Sawai Madhopur, whereby the petition filed by the respondent / applicant- husband ('the applicant husband' for short) under section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights has been allowed and a decree has been passed. Brief facts of the case are that on 26.06.2014 applicant-husband filed a petition under section 9 of the Hindu Marriage Act, 1955 ('the Act of 1955' for short) before the learned Family Court, Sawaimadhopur, against the non-applicant- wife for grant of decree for restitution of conjugal rights with the averments that both the parties married on 16.05.2011 in Village Lodipura as per Hindu Rites and Customs. After marriage non- applicant-wife remained with him for sometime. Thereafer, she started frequent visits to her parental home and on 26.05.2013 when she went to her parental home with her father saying that she will return within 10-15 days but she did not return. He (the applicant-husband) tried his best to bring her but the non- applicant-wife did not come nor her parents sent her. On 20.06.2014 the applicant-husband along-with other family members and relatives went to her parental home but she refused to come. The non-applicant-wife is living with her parents under their influence. The non-applicant wife submitted reply of denial to the petition. The non-applicant-wife specifically pleaded in the reply that she was forcibly thrown away from the matrimonial home for want of dowry for which an FIR No.12/2015 was loged by her at Police Station Mahila Thana, Sawai Madhopur, for offences under sections 498A and 406 IPC. After marriage she was harassed, tortured and cruelty was also committed upon her by giving severe beatings. All her dowry articles have been snatched by the applicant-husband. The non-applicant-wife prayed in the reply that in the above circumstances it is quite impossible for her to live with the applicant-husband and prayed for dismissal of the petition with costs.
(2.) The learned Family Court on the basis of pleadings of parties framed three issues which are as under:- "A. Whether non-applicant-wife has deserted the applicant-husband without any reasonable cause ? B. Whether the applicant-husband is having right against the non-applicant-wife for restitution of conjugal rights ? C. Relief ?" The applicant-husband in his evidence got himself examined as AW1, Ramdayal as AW2, Mishrilal as AW3 and Ramniwas as AW4. The non-applicant-wife in her evidence got herself examined as NAW1 and Maina as NAW2. The learned Family Court vide judgment dated 12.05.2017 allowed the petition filed by the applicant-husband for restitution of conjugal rights under section 9 of the Act of 1955 and ordered the non-applicant- wife to live with the applicant- husband as a wife and passed the decree. Learned counsel for the non-applicant-wife has argued that the learned Family Court has erred in not considering the statements of the non-applicant-wife as she specifically stated that the applicant-husband and his other family members tortured her and gave beatings to her for or in connection with demand of dowry and she was maltreated and forcibly ousted from the matrimonial home. A criminal case has also been registered against the applicant-husband and his family members and the trial is pending. The applicant-husband does not want to live with the non-applicant-wife and in a planned manner he filed the petition under section 9 of the Act of 1955. Due to mental and physical harrassment made by the applicant-husband with her it is quite impossible for her to live with him (applicant-husband). The applicant-husband filed the application under section 9 of the Act of 1955 with a view to counter the criminal case which has been registered against him and other family members. The findings recorded by the learned Family Court suffer from infirmity. Impugned judgment and decree has been passed by the learned Family Court in a cursory manner without properly considering the material and evidence on record. Learned counsel for the applicant-husband opposed the appeal and supported the impugned judgment and decree passed by the learned Family Court.
(3.) Heard learned counsel appearing for the parties, gone through the impugned judgment and decree passed by the learned Family Court and carefully scanned and scrutinized the entire record of the case. On 19.07.2018 when the matter was listed before the Court, learned counsel appearing for the respective parties made a statement about possibility of amicable settlement between the parties. On the aforesaid day in order to explore possibility of amicable settlement, the Court directed both the parties to remain present in Court on 02.08.2018. On 02.08.2018, the Court directed the learned counsel for the non-appellant to keep the applicant-husband present before the Court on 09.08.2018. But on 09.08.2018 when both the parties did not appear then the Court fixed the next date for appearance and it was ordered that both the parties to remain present in person on 19.09.2018. On 19.09.2018 the non-applicant-wife did not appear but the applicant-husband appeared in person. The court granted last opportunity to the non-applicant-wife for appearance and passed order to remain present in Court and fixed the matter for 30.10.2018. It was also ordered that in non-compliance, the appeal would be heard on merits. It is pertinent to note that order dated 19.09.2018 reveals that respondent-husband agreed to pay the appellant-wife permanent alimony but on 30.10.2018 when the matter was listed before the Court, the appellant-wife agreed to resolve the issue in lieu of payment of Rs. 3,00,000/- as permanent alimony but then taking U-turn, the respondent-husband and his father refused to pay the amount. On 30.10.2018 the appellant-wife, respondent-husband along-with his father appeared before the Court. The order dated 30.10.2018, reveals as under. "The respondent is present alongwith his father. The respondent claims that he earns not a penny. The father of the respondent states that his son earns not a penny. When we asked father of the respondent as to why he got his son married he replied that all people get married. ;