Judgement

SHAH, J. : On July 25, 1958 the parties to this appeal were married under the Special Marriages Act 43 of 1954. There was a child of the marriage. Alleging that on November 10, 1959, his wife Veena-who will hereinafter called the respondent -had without reasonable cause deserted him and had failed to return and live with him in spite of repeated request, the husband, M. P Shreevastava-hereinafter called the appellant - filed a petition in the Court of the District Judge, Delhi, for a decree for restitution of conjugal rights This petition was decreed ex parte on March 13, 1961. On May 21. l961 the respondent returned to the residence of the appellant and offered to live with him. She also wrote letters to the appellant requesting him to allow her to go to his house and live with him as his wife but the appellant refused to receive the letters. Attempts made through certain friends of the family to persuade the appellant to take the respondent back into the marital home were also unsuccessful. The respondent then applied to the District Court. Delhi, for an order that the decree he recorded as satisfied, since the appellant had failed and neglected to allow the respondent to resume conjugal relations even after she went to his house and made a request to that effect. The District Judge, Delhi, held that the decree for restitution of conjugal rights against the respondent stood satisfied, and ordered that it be recorded that the decree was satisfied. In appeal to the High Court of Punjab, Dua, J. confirmed the order passed by the District Court. An appeal under the Letters Patent filed by the appellant met with no success. The husband-M. Shreevastava - has then appealed to this Court with special leave

2. Two contentions were raised by the appellant in support of the appeal :

(1) The Court of the District Judge and the High Court were in error in recording satisfaction of the decree, because the acts done by the respondent do not in law constitute an attempt to resume conjugal relations and

(2) that the application filed by the respondent was not maintainable, because at the material date no application for execution of the decree filed by the appellant was pending, and the District Court was on that account not a Court executing the decree.

(3) The District Judge observed that the respondent had made "a genuine effort x x x to come and live with the" husband. "but he (the husband) has spurned that offer", that "there was no obstinacy or disinclination on the part of the" wife "to come back and live with her husband , and that the wife "has

all along been keen to live with him and has made a number of attempts to prevail upon him to take her back". Dua, J., observed that

"the decree for restitution of conjugal rights x x can be obeyed and satisfied if the wife "goes and lives with the husband as a wife or reasonably does all she can do in that direction. X x In case, however the judgment-debtor is willing to obey the decree but the unjustified obstruction towards the performance of the decree comes from the decree-holder, then, the judgment-debtor would be fully entitled to approach the Court and pray that the decree he recorded as satisfied so that the decree-holder may not fraudulently and mala fide utilise the decree for the purpose of securing a decree for divorce."

On a review of the evidence, the learned Judge agreed with the Trial Court. The High Court hearing the appeal under the Letters Patent agreed with that view.

4. It was never argued on behalf of the appellant in the Court of First Instance and the High Court that attempts proved to have been made by the respondent to resume conjugal relations could not in law amount to satisfaction of the decree, and we do not think we would be justified at this stage in allowing that question to be raised for the first time in this Court.

5. But it was said that the respondent could not maintain an application for recording adjustment of the decree. Under O. 21 R. 2 C. P. Cod