DINESHBHAI JAGADISHBHAI MISTRYversusKAVITABEN W/O DINESHBHAI MISTRY AND D/O ANANDRAV SHINDE

       C/FA/3813/2021                                  ORDER DATED: 07/07/2026




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/FIRST APPEAL NO. 3813 of 2021
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                 DINESHBHAI JAGADISHBHAI MISTRY
                              Versus
     KAVITABEN W/O DINESHBHAI MISTRY AND D/O ANANDRAV SHINDE
==========================================================
Appearance:
MR. JARJEESKHAN(7235) for the Appellant(s) No. 1
RULE SERVED for the Defendant(s) No. 1
==========================================================

     CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
           and
           HONOURABLE MR. JUSTICE R. T. VACHHANI

                                   Date : 07/07/2026

                             ORAL ORDER
              (PER : HONOURABLE MR. JUSTICE ILESH J. VORA)


1.      This First Appeal under Section 19 of the Family Courts Act, 1984,
        is directed against the judgment and decree dated 31.08.2021
        passed in HMP No. 205 of 2015, whereby, the Family Court at
        Surat, was pleased to dismiss the petition for restitution of conjugal
        right under Section 9 of the Hindu Marriage Act, 1955 (referred to
        as ‘the Act’ for short).


2.      Brief facts leading to file this appeal are as follows:

(i)     The appellant husband had filed a petition under Section 9 of the
        Act, inter-alia, praying that, the respondent wife has without
        reasonable excuse, withdrawn herself from his society. The
        marriage of the parties was solemnized on 15.09.2010 at Surat and
        same came to be registered with concerned authority. During the
        wedlock, the parties blessed with a child – baby boy. They stayed
        together for about 7 years. According to case of the appellant


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       C/FA/3813/2021                               ORDER DATED: 07/07/2026




       husband, the wife did not want to stay in a joint family and on petty
       issue, the quarrel between them arose on and often. In such
       circumstances, on 14.01.2017, without any reason, the respondent
       wife left the house and since then, she never returned to fulfill her
       obligation at the house of the appellant. She was served with notice
       on 06.03.2017, asking her to come back and fulfill and performed
       the conjugal rights. However, she did not respond to the notice, as a
       result, on 17.03.2017, a petition under Section 9 of the Act was
       being filed. The petition was contested by the respondent wife,
       mainly on the ground that, the marriage was not legal and valid, as
       at the time of registration of the marriage, the first marriage with
       one Sunita was subsisting. The other contention was raised that, the
       marriage was not solemnized in accordance with customary rights
       and ceremonies of either party. The third contention was raised
       that, the appellant husband suppressed and concealed his first
       marriage and in the marriage registration form, he stated his status
       as ‘unmarried’. In such circumstances, it is averred in the written
       statement that, when marriage is not valid, no decree for restitution
       of conjugal rights can be passed.


(ii)   The Family Court, after hearing the parties and considering the
       evidence on record, was pleased to dismiss the suit, observing that,
       the appellant husband failed to prove the factum of marriage and
       also failed to establish that, necessary ceremonies as required under
       Section 7 of the Act was performed. The learned Family Court, also
       took a note of the fact that, at the time of registration of marriage,
       the first marriage was in subsistence.



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     C/FA/3813/2021                               ORDER DATED: 07/07/2026




3.   In the aforesaid facts and circumstances, being aggrieved and
     dissatisfied with the dismissal of the suit, the appellant – original
     petitioner – husband, has preferred this First Appeal.

4.   We have heard learned counsel Mr. Jarjeeskhan, appearing for and
     on behalf of the appellant herein. Though served, none has
     appeared for and on behalf of the respondent.


5.   Mr. Jarjeeskhan, learned advocate, while assailing the judgment
     and decree has submitted that, the learned Family Court has gross
     erred in rejecting the petition, as for a period of 7 years, both the
     parties stayed together and one son is born out during the wedlock,
     which itself shows that, the marriage was legal and valid. That,
     before the Family court, the respondent wife, failed to appear in
     person and the evidence led by the petitioner – husband has not
     been challenged. That, the respondent wife was having knowledge
     about the first marriage and despite of this, she performed the
     marriage and took part in the registration process. That, after 7
     years of the marriage, the respondent wife without reasonable
     excuse, withdraw herself from the society of the appellant. That,
     the suit filed by the respondent wife for obtaining a decree of
     declaration that her marriage with the respondent is null and void
     and void-ab-initio under Section 11 read with Section 5 of the Act,
     came to be dismissed on 03.05.2023. That, dismissal of the suit,
     would further prove that, the marriage of the parties is legal and
     valid and having considered the conduct and attitude of the
     respondent wife, the Family Court, ought to have directed the wife
     to perform the obligation on her part.


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6.   In such circumstances, Mr. Jarjeeskhan, learned advocate has
     submitted that, the observations made by the Family Court, are not
     based on the evidence on record and contrary to the settled law and
     statutory provision of the Act and therefore, the findings are seems
     to be perverse and judgment and order of dismissal of the suit under
     Section 9 may be set aside and decree be passed for restitution of
     conjugal right.


7.   We have carefully perused the case records and findings of the
     impugned judgment. Having regard to the facts of the case, the
     issue falls for our consideration, as to whether, the Family Court,
     Surat was justified in dismissing the suit filed under Section 9 of
     the Act?


8.   In the facts of the present case, admittedly, this is the second
     marriage of the appellant. The first marriage with one ‘Sunita’ was
     not lasted for long time and by mutual agreement, they parted their
     ways. The appellant was running a clinic in the area where
     respondent was residing. The respondent was recruited as
     receptionist in the clinic. They developed intimate relationship and
     later on, they tied the knot and entered into marriageable
     relationship and same was registered on 15.09.2010. Admittedly, in
     the column of marriage registration form, the status of the husband
     was shown as ‘unmarried’. The first marriage was not dissolved by
     any competent court. It is not the case of the appellant that, due to
     custom prevail in their community, it is permissible to dissolve the
     marriage by mutual understanding. It is settled position of law that
     Hindu Marriage can be dissolved only in accordance with law, by

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          C/FA/3813/2021                                                            ORDER DATED: 07/07/2026




           obtaining the decree of divorce from the Court. In absence of any
           decree of divorce, the first marriage remains in subsisting.
           Therefore, in our opinion, an application for restitution of conjugal
           right is not maintainable if there is no valid marriage in the first
           place. In the present case, the appellant failed to prove the factum
           of valid marriage with the respondent herein. It is no doubt true that
           the parties had lived together as husband and wife for 7 years and
           more but the fact remains that, the appellant had already married at
           the time of entering into marriage with the respondent herein. The
           suit filed by the respondent for declaring the marriage null and
           void, came to be dismissed, mainly on the ground of delay. The
           Family Court, while dismissing the suit, has not dealt with the issue
           of validity of the marriage, as claimed. In such circumstances, we
           are of the view that, the trial Court has rightly dismissed the suit for
           restitution of conjugal rights, as the application could be made only
           against wife or husband, as the case may be, when the marriage, is
           in accordance with law.


9.         For the reasons recorded, we do not find any ground to interfere
           with the findings recorded by the Family Court.


10.        In the result, Appeal fails and is dismissed. There shall be no order
           as to costs.

                                                                                             (ILESH J. VORA,J)



                                                                                          (R. T. VACHHANI, J)
P.S. JOSHI/08.07.2026


Original copy of this order has been signed by the Hon'ble Judges.
Digitally signed by: PALLAV SUBHASHCHANDRA JOSHI(HC00177), Principal Pvt. Secretary, at High Court of Gujarat on 08/07/2026 16:02:41


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