Back
1989 Supreme(Ori) 330
IN THE HIGH COURT OF ORISSA
G.B. Pattnaik, J.
ELA DASU - APPELLANT
Versus
ELA LACHAMMA - RESPONDENT
Second Appeal No. 284 of 1982
Decided On : 07-09-1989
B.B. Ratho, for the Appellant; P. Palit, for the Respondent
An acquittal in a criminal case does not bind the Civil Court in a subsequent suit for restitution of conjugal rights, and the court has the discretion to grant the relief of restitution depending on the circumstances of the case.
Headnote:
RESTITUTION OF CONJUGAL RIGHTS - MARRIAGE - CRIMINAL ACQUITTAL - BINDING EFFECT - DISCRETION OF COURT - HINDU MARRIAGE ACT, 1955, SECTION 9(1).
Fact of the Case:
Plaintiff filed a suit for restitution of conjugal rights, alleging that she was married to the defendant in 1969 and lived with him for four years before being driven out in 1973 due to ill-treatment. The defendant denied the marriage and claimed that he had married someone else. The trial court and lower appellate court found in favor of the plaintiff, holding that the marriage was valid and that the defendant had deserted her without reasonable cause.
Finding of the Court:
The High Court held that the acquittal of the defendant in a criminal proceeding under Section 494, IPC (marrying again during the lifetime of a husband or wife) did not bind the Civil Court in the suit for restitution of conjugal rights. The court also held that the trial court and lower appellate court had properly exercised their discretion in granting the relief of restitution, as there was no legal ground for refusing the decree.
Issues: 1. Whether the finding of the criminal court in the proceeding under Section 494, IPC, that there was no valid marriage between the plaintiff and the defendant, was binding on the Civil Court in the suit for restitution of conjugal rights? 2. Whether the court had the discretion to refuse the relief of restitution of conjugal rights, even if the conditions stipulated in Section 9(1) of the Hindu Marriage Act were satisfied?
Ratio Decidendi: 1. An acquittal in a criminal case does not raise a presumption as to possession or dispossession and cannot be relied on as a binding decision in a civil action. 2. The court has a duty to inquire into and pass a decree for restitution after satisfying itself that there is a bona fide desire of the petitioner to resume matrimonial cohabitation and to render the rights and duties of matrimonial life. The court must be satisfied that the respondent has without reasonable excuse withdrawn from the society of the petitioner and there is no legal ground why the decree should not be passed.
Final Decision: The High Court dismissed the defendant's second appeal, holding that the trial court and lower appellate court had correctly decided the issues and that there was no merit in the appeal.
JUDGMENT :
G.B. Pattnaik, J. - Defendant is the appellant against a confirming judgment in a suit for restitution of conjugal rights.
2. It was alleged in the plaint that the plaintiff and defendant were married on 2-3-1969 and the marriage was duly consumated and they were living as husband and wife, but they did not have any issue. They continued as such till 1973 when the defendant began to illtreat the plaintiff mostly on account of the fact that no child was born. The plaintiff was driven out of the husband's house in September, 1973. She then sent a registered notice on 8-3-1974 but the defendant denied the allegations made in the notice. In reply to the registered notice, the defendant alleged that there has been no marriage between the plaintiff and defendant. On these allegations, the suit was filed for the relief of restitution of conjugal rights.
3. The defendant in his written statement denied all the allegations made in the plaint. According to the defence case, the defendant had married the daughter of Ponada Poliga and there had been no marriage between the plaintiff and the defendant. The defendant also averred that on the basis of false complaint, a case u/s 494, IPC has been registered in the file of the S.D.J.M., Berhampur. On these averments, it was prayed that the suit is liable to be dismissed.
4. Four issues were framed on the aforesaid pleadings, and on the question whether the plaintiff is the wife of the defendant or not, the trial Court came to the conclusion that the plaintiff had married the defendant and they had also lived as husband and wife for a period of four years after its consumation. On issues 2 and 3, the trial Court held that the plaintiff is entitled to restitution of conjugal rights and there is cause of action for the suit. On these findings, the trial Court decreed the suit.
5. On an appeal being carried by the defendant, the lower appellate Court confirmed the findings that plaintiff had married the defendant in the year 1969 and she remained with him as husband and wife for four years and subsequently she had been deserted by the defendant and accordingly the appeal was dismissed. The defendant has, therefore, filed the present Second Appeal.
6. Mr. Rath appearing for the appellant raised two contentions in assailing the confirming judgment of the two Courts below :
(i) the defendant having been prosecuted u/s 494, IPC and having been acquitted on a finding that there was no marriage between the plaintiff and the defendant, the said finding is binding on the Civil Court, particularly in view of Explanation VIII to Section 11 of the CPC and ignoring the said finding has vitiated the ultimate conclusion, and
(ii) even if the conditions stipulated in Section 9(1) of the Hindu Marriage Act are satisfied, the Court has still the discretion not to grant the relief depending upon the circumstances of each case and on the facts and circumstances of the present case, the Court should not have granted the relief of restitution,
Both the contentions require careful examination.
7. So far as the first submission is concerned, Mr. Rath appearing for the appellant contends that the finding of the criminal proceeding u/s 494, IPC that there was no valid marriage between the present plaintiff and defendant is a finding of a Court of limited jurisdiction within the meaning of Section 11 of the CPC and therefore, such a finding must be held to be binding on the Civil Court when the question of marriage between the plaintiff and defendant is in issue. According to Mr. Rath, Explanation VIII to Section 11, which was introduced by way of amendment, clearly indicates that an issue heard and finally decided by a Court of limited jurisdiction competent to decide such issue shall operate as res judicata in a subsequent suit notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised. In my opinion, to attract Expl
