SHOBHA SINGH PARIHAR vs SANJAY SINGH

Neutral Citation No. (2026:JHHC:32225-DB)



IN THE HIGH COURT OF JHARKHAND AT RANCHI
First Appeal No. 139 of 2022


Shobha Singh Parihar, aged about 34 years, W/o Sanjay Singh, D/o
Dhani Singh Parihar, Resident of Qr. No. B.R.R.L. B.T./61, Railway
Colony, Ward No.6, Dhanpuri No.3, Near Hanuman Mandir, P.O.
Dhanpuri, P.S. Amlai, District Shahdol (Madhya Pradesh) & PIN-
484114. ... ... ... Appellant
Versus
Sanjay Singh, aged about 35 years, S/o Udaybhan Singh, R/o Qr.
No. B-71, Ashok Vihar Colony, Dhamdhamia, Village Tumang, P.O.
Nawadih, P.S. Khelari, District Ranchi, resident of House No.206,
Ward No.18, Village Salaiya via Chandia Road, P.O. Koria, P.S.
Chandiya, District Umariya (Madhya Pradesh) & PIN-484660.
….. … ... Respondent
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CORAM: HON’BLE THE CHIEF JUSTICE
HON’BLE MR. JUSTICE MANOJ PRASAD
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For the Appellant : Mr Chanchal Jain, Advocate
For the Respondent : Mr Dharmendra Kumar Maltiyar,
Advocate
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Reserved On : 06/10/2026 Pronounced On: 03/11/2026
Per : Manoj Prasad, J.
1. Heard Mr Chanchal Jain, for the appellant and
Mr Dharmendra Kumar Maltiyar , for the respondent.
2. The present appeal has been filed by the opposite party-
appellant Shobha Singh Parihar, impleading the petitioner as
respondent namely Sanjay Singh, aggrieved by the judgment and
decree dated 29.07.2019 and 01.08.2019 respectively passed in
Original Suit No. 624 of 2018 by the Court of the learned
Additional Principal Judge, Additional Family Court, Ranchi,
F.A. No.139 of 2022

whereby and whereunder, the suit filed by the present
respondent for restitution of conjugal rights was allowed.
3. Briefly stated the facts of the case are hereunder: -
The Original Suit No.624 of 2018 was instituted by the present
respondent under Section 9 of the Hindu Marriage Act against
the present appellant for restitution of conjugal rights, alleging
inter -alia that the present appellant and respondent were legally
married husband and wife, which marriage was solemnized as
per Hindu rituals on 25.04.2016. It is stated that within a couple
of days of marriage, the Appellant requested to return to her
parental home and expressed her desire that she did not want to
live with the present respondent as husband and wife, making
complaints on the complexion of the present respondent. It is
further alleged that in course of time, despite several efforts and
despite occasional restitution of conjugal rights between the
parties, the parties even lived together at the workplace of the
present respondent at Khelari, Ranchi, but the present appellant
perpetually neglected the respondent and frequently returned to
her parental home. In course of time, the present appellant
became pregnant, and she returned to her parental home but
even did not inform about the birth of a male child, who was born
sometimes in the month of February 2018. In March 2018, when
the respondent along-with his family went to his in-laws’ house to
meet his wife and the newborn child, he was neglected and was
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not allowed to meet his child. The respondent even instituted a
pre-litigation case before the D.L.S.A. for restitution of conjugal
rights where even the present appellant appeared but to no
effect. It is alleged that since June 2017, the present appellant
has left the society of the respondent without any reasonable
excuse and hence, the suit for restitution of conjugal rights.
4. Despite valid service of notice and even appearance of the
present appellant before the Court of the Additional Family
Judge, Additional Family Court, Ranchi, and despite granting
several adjournments for filing written statement, no written
statement was filed, and the suit proceeded for ex-parte hearing.
5. Three witnesses were examined on behalf of the present
respondent, and by the impugned Judgment, the suit for
restitution of conjugal rights was decreed, directing the present
appellant to restore conjugal life within three months of the date
of the judgment and decree.
6. Aggrieved by this judgment, the present appeal has been
filed, predominantly alleging that the present respondent
committed fraud on her. She had appeared before the Trial
Court, and the matter was referred to the D.L.S.A for settlement,
where the husband had proposed to restore conjugal life, to
which the appellant had also agreed. She was convinced to wait
in her parental home and was under the impression that the suit
for restitution of conjugal rights had been withdrawn. However,
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despite waiting for a sufficiently long time, the respondent did not
come to bring her back to their company, nor did the respondent
bother to take care of the present appellant or her minor son, and
an ex parte decree for restitution of conjugal rights was obtained.
It is also alleged that she had filed an application for
maintenance, a case under the Domestic Violence Act, and a suit
for restitution of conjugal rights in the District of Shahdol, Madhya
Pradesh. She alleges that in September 2019, the appellant,
along with her father, came to her matrimonial home but was not
allowed access, and that she had filed a complaint case, being
MJCR No. 86 of 2019, as has been stated. It is also stated that
the learned Additional Principal Judge, Additional Family Court,
Ranchi, did not consider these aspects of the case while passing
the impugned judgment, and for these reasons, the passing of
the impugned judgment and decree has been challenged.
7. When the case was taken up before this Bench, it appeared
that both the parties had proposed to restore the conjugal life, for
which instructions were sought to be taken by the concerned
parties, but subsequently such effort appears to have failed, and
the arguments were heard, and the case was reserved for
judgment.
8. Learned counsel appearing on behalf of the appellant
submits that, although the suit for restitution of conjugal rights
was instituted, the respondent never intended to restore conjugal
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life, and the suit was brought only to create grounds for
dissolution of marriage for non-compliance with the order for
restitution of conjugal rights. Learned counsel also submits that
the appellant was forced to leave her matrimonial home because
the respondent subjected her to cruelty and came to the house in
a drunken condition. The respondent's conduct is apparent from
the fact that, despite the birth of a child, he never came to meet
his wife or child, and the suit for restitution of conjugal rights was
merely a farce in the process of law. Considering these aspects,
the prayer is made to set aside the impugned judgment and
decree. It was repeatedly argued that the respondent was ready
and willing to restore conjugal life. It was also argued that the
recording of evidence under Order XVIII Rule 4 and the filing of
an affidavit were not in accordance with law, as the impugned
judgment is an appealable judgment and the evidence ought to
have been recorded under Order XVIII Rule 5. The Trial Court
record has been referred to, showing that the witnesses'
affidavits were filed and the witnesses were discharged by the
Pleader Commissioner, as is also apparent from the orders
passed by the learned Trial Court. Thus, there is a procedural
illegality in passing the impugned judgment, and reliance is
placed on the matter of Ameer Trading Corporation Ltd. Vs.
Shapoorji Data Processing Ltd., reported in (2004) 1 SCC,
702.
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9. Per contra , learned counsel appearing on behalf of the
respondent submits that the impugned judgment and decree do
not suffer from any illegality. The impugned judgment was
passed in 2019, and despite the lapse of about eight years,
instead of restoring conjugal life, the present appeal has been
filed, challenging the correctness of the impugned judgment.
Learned counsel submits that after the impugned judgment was
passed, when a copy of the same was communicated to the
appellant through registered post, instead of complying with the
said judgment, the appellant chose to file a complaint under the
Prevention of Domestic Violence Act, 2005. So far as the passing
of the impugned judgment is concerned, the appellant had put in
appearance in person and by filing a Vakalatnama, and despite
sufficient opportunity, when the written statement was not filed,
the appellant was prevented from filing the same by an order
debarring the filing of the written statement. Learned counsel,
therefore, submits that the impugned judgment does not suffer
from any illegality and the prayer is made to dismiss the appeal.
FINDINGS
10. Heard the parties and perused the records.
11. On perusal of the record, it appears that the appeal was
instituted after a long delay, but a Coordinate Bench of this Court
has condoned the delay and in course of hearing, a Coordinate
Bench of this Court, while hearing this appeal, appears to have
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passed an order of stay of the proceedings of the divorce case,
pending before the Court of learned Additional Principal Judge,
Additional Family Court, Ranchi being Original Suit No. 160 of
2021 which was instituted for a decree of divorce on account of
non-compliance of the order of restitution of conjugal rights.
12. On hearing the rival contentions of the parties, the following
points for determination fall for our consideration:
(i) Whether the examination of the witnesses by filing
of an affidavit, as required under Order XVIII Rule 4,
constituted a breach of the procedure established under
Order XVIII Rule 4 and Rule 5 of the C.P.C.
(ii) Whether the respondent was entitled to a decree
for restitution of conjugal rights on account of the
appellant refusing to live in the company of her husband.
13. The first point for determination is based on the contention
that, because the impugned judgment was appealable, the
procedure prescribed under Order XVIII Rule 5 ought to have
been followed, i.e., the witnesses were required to be examined
before the Court, not by the Pleader Commissioner.
Reliance has been placed on the judgment reported in (2004)
14.
1 SCC 702 , in which the Hon’ble Supreme Court has very
categorically laid down the law that there is no conflict between
the provisions under Rule 4 and Rule 5 of Order XVIII. In
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appealable or non-appealable cases, the examination-in-chief on
affidavit can be taken, and witnesses are not required to step into
the witness box to prove their examination-in-chief. Reiterating
the same view, the Hon’ble Supreme Court, in yet another
judgment in the matter of Rasiklal Manikchand Dhariwal and
Anr. Vs. M/s M.S.S. Food Products, reported in (2011)
Supreme SC 1101 (2012) 2 SCC 196 , again placed reliance on
the judgment of Ameer Trading Corporation Ltd. (Supra) and
reiterated the law, discussing the principles of harmonious
construction, observing that in both appealable and non-
appealable cases, the examination-in-chief on affidavit can be
taken on record. Such examination-in-chief is sworn before the
Oath Commissioner, and only if the witnesses are to be cross-
examined would the provisions of Rule 5 of Order XVIII come into
play. Order XVIII Rule 5 states that in cases in which the appeal
is allowed, the evidence of each witness shall be taken down in
the language of the Court in writing by or in the presence and
under the personal direction and superintendence of the
Judge.
15. For the sake of convenience, Rule 5 of Order XVIII of the
C.P.C is quoted hereunder: -
5. How evidence shall be taken in appealable cases. -
In cases in which an appeal is allowed, the evidence of
each witness shall be, -
(a) taken down in the language of the Court, -
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(i) in writing by, or in the presence and under the
personal direction and superintendence of, the Judge, or
(ii) from the dictation of the Judge directly on a
typewriter; or
(b) if the Judge, for reasons to be recorded, so directs,
recorded mechanically in the language of the Court in
the presence of the Judge.
16. The Hon’ble Apex Court therefore held that filing an
examination-in-chief on affidavit, even in cases where the appeal
lies against the judgment, does not suffer from any illegality, and
that cross-examination under the Court’s supervision, if not
directly conducted by the Court, is also sufficient compliance with
Order XVIII Rule 5 of the C.P.C.
17. In the facts of the case before the Hon’ble Apex Court, the
proceedings were also ex parte against the appellant, as in the
present case, and the Hon’ble Supreme Court held that, in such
cases where there was no one to cross-examine the witnesses,
the application of Rule 5 of Order XVIII does not come into play.
18. In view of the principles of law discussed above, we are of
the considered view that the recording of evidence by the Trial
Court in the manner so done does not suffer from any procedural
irregularity or illegality and thus, this point for determination as
raised by the present appellant is answered against the
appellant and in favour of the respondent .
19. Considering the second point for determining whether a
decree for restitution of conjugal rights could have been passed
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in favour of the respondent. In the facts of the present case, it is
not in dispute that the parties were legally married husband and
wife. It is also not in dispute that the parties were living
separately, i.e., the wife was residing separately from her
husband. For restitution of conjugal rights under Section 9 of the
Hindu Marriage Act, desertion need not be proved. What is
required to be proved is that the other spouse, without
reasonable excuse, has withdrawn from the society of the other.
Allegations that there was a reasonable excuse for withdrawing
from the society of the present respondent, i.e., that cruelty was
being meted out to her and that she was ousted from her
matrimonial home, remain unsubstantiated, both for want of any
pleading and for want of any evidence, and even for want of any
cross-examination of the respondent’s witnesses, including the
respondent himself, who has been examined as a witness. The
appellant appeared before the Trial Court and, despite the
appearance, did not contest the suit by not filing the written
statement, and the Court could have proceeded in terms of Order
VIII Rule 10 of the CPC. However, the Court called upon the
present respondent to prove his case by adducing evidence. In
the absence of any valid contest before the Trial Court, as the
case of the respondent remains undefended and the witnesses of
the respondent support the case of the respondent, we do not
find any illegality in passing the decree for restitution of conjugal
rights.
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20. We, therefore, are of the considered view that the respondent
was entitled to a decree for restitution of conjugal rights and the
impugned judgment and decree do not suffer from any illegality.
21. In the course of the arguments, it was impressed that the
decree was obtained solely for the purpose of subsequently
obtaining a decree for divorce, for which a suit has been
instituted and which has presently been stayed by the orders of
th
this Court, vide order dated 09 July, 2025.
22. We are also of the considered view that, since the said
question is not open for determination before this Court, no
observation can be made on the merits of the claim or the
objections. Such questions will be open for adjudication before
the Trial Judge when deciding the question of divorce.
23. We are constrained to observe that, although there was a
decree for restitution of conjugal rights, it has come up in the
course of argument that the present appellant had also instituted
a suit for restitution of conjugal rights, and even in this appeal
before this Court, the appellant seeks restitution of conjugal
rights but still challenges the judgment and decree for restitution
of conjugal rights. It would not be proper for us to make any
observation as to how and under what circumstances the decree
for restitution of conjugal rights was not executed. Such
questions are left open for determination in the suit seeking
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dissolution of marriage for non-compliance with the decree for
restitution of conjugal rights.
24. We are therefore of the considered view on answering the
points for determination as formulated by us that the learned Trial
Court has not committed any error in law or fact in passing
impugned judgment and decree. The appeal is, therefore,
dismissed.
25. Pending I.As, if any, do not survive and accordingly stand
disposed of.

(M. S. Sonak, C.J.)



(Manoj Prasad, J.)


November, 3rd, 2026
BS/-
A.F.R.

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