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1994 Supreme(P&H) 238
PUNJAB & HARYANA HIGH COURT
R.P.Sethi and H.S.Bedi JJ.
Sanyogata Devi
Versus
Lalit Kumar Khurana
Letter Patent Appeal No. 683 of 1985,
Decided On : FEBRUARY 18, 1994
A decree for restitution of conjugal rights cannot be granted without considering the provisions of Section 23 of the Hindu Marriage Act, 1955.
Headnote:
MATRIMONIAL DISPUTE - RESTITUTION OF CONJUGAL RIGHTS - SECTION 9, 23 OF THE HINDU MARRIAGE ACT, 1955 - CODE OF CIVIL PROCEDURE, 1908 - ORDER 9, RULE 8, ORDER 12, RULE 6, ORDER 23, RULE 3 - DECREE FOR RESTITUTION OF CONJUGAL RIGHTS SET ASIDE - COUNTER-CLAIM OF HUSBAND HELD PENDING - PARTIES DIRECTED TO APPEAR BEFORE TRIAL COURT FOR FRESH PROCEEDINGS.
Fact of the Case:
Wife filed a petition under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights. Husband contested and filed a counter-claim under Section 23-A of the Act for divorce on the ground of desertion and cruelty. Trial Court granted a decree in favor of the wife. Wife appealed against the decree and husband filed cross-objections praying for a decree for divorce on the ground of cruelty.
Finding of the Court:
The Trial Court failed to consider the provisions of Section 23 of the Act and passed a decree for restitution of conjugal rights in favor of the wife without satisfying itself about the existence of the grounds necessary for the grant of relief and the absence of the disabilities detailed in the aforesaid Section. The decree was passed despite the wife's Counsel stating that he had no objection if the petition was dismissed for non-prosecution. The Trial Court also failed to pass any order regarding the counter-claim of the husband.
Issues: Whether the Trial Court erred in passing a decree for restitution of conjugal rights in favor of the wife without considering the provisions of Section 23 of the Hindu Marriage Act, 1955.
Ratio Decidendi: The Court held that the Trial Court failed to consider the provisions of Section 23 of the Act and passed a decree for restitution of conjugal rights in favor of the wife without satisfying itself about the existence of the grounds necessary for the grant of relief and the absence of the disabilities detailed in the aforesaid Section. The decree was passed despite the wife's Counsel stating that he had no objection if the petition was dismissed for non-prosecution. The Trial Court also failed to pass any order regarding the counter-claim of the husband. The Court held that the decree for restitution of conjugal rights was illegal and void.
Final Decision: The Court set aside the decree for restitution of conjugal rights passed in favor of the wife. The counter-claim of the husband was held to be still pending in the Trial Court and the parties were relegated to the position which existed before 29.7.1983. The Trial Court was directed to proceed afresh in the matter and dispose of the petition of the wife as well as the counter-claim of the husband strictly in accordance with the provisions of law and in the light of this judgment.
R.P.Sethi, J.
1. Contrary to their pleadings and apparently conciliatory gestures made by the parties they have prolonged this litigation for over a decade. The litigation has been perpetuated in futility by the casual approach adopted by the Trial Court in dealing with the matter of matrimonial dispute between the parties. Whereas the wife has been pretending to be interested in rehabilitation of conjugal relations the husband has shown his over enthusiasm of restoration of the matrimonial ties when he conceded a decree of restitution of conjugal rights in favour of the wife. However, none of the patties appear to be satisfied with the relief granted as the wife herself filed an appeal against the decree granted in her favour and the husband has filed a petition for divorce despite the conceded prayer of his wife for restitution of matrimonial obligations. The consistent efforts made by the Court for conciliation between the parties have failed on account of the adamant attitude adopted by the spouse.
2. The facts giving rise to the filing of the present appeal are that the parties were married on 1.3.1979 and out of the wed-lock a daughter namely Leena was born on 16.4.1980. The appellant-wife alleged that parents of the husband being greedy started torturing and mal-treating her on the alleged ground of insufficiency of dowry culminating in the respondents withdrawal from her society with effect from 9.12.1980 with the result that she filed a petition under Section 9 of the Hindu Marriage Act, 1955 (for short the Act) for restitution of conjugal rights. The petition was contested by the respondent-husband who filed a counter-claim under Section 23-A of the Act for seeking divorce on the ground of desertion and cruelty attributed to the wife, allegedly as a counter blast to the prayer of the petitioner.
3. None of the parties appear to be genuinely interested in the prosecution of their cases as is evident from the various adjournments granted in the case for production of evidence. On 29.7.1983 the Counsel for the appellant made a statement before the Court that she had not contacted him and that he had no objection if the petition was dismissed for non-prosecution. The respondent-husband who had sought divorce in his counter-claim opposed the prayer of the wife for dismissal of the petition for restitution of conjugal rights and instead prayed that a decree be granted in her favour. The Trial Court obliged the husband and passed a decree in favour of the wife apparently affording an opportunity to the husband to subsequently file a petition for divorce. When the appellant filed an appeal against the judgment passed in her favour, the respondent-husband again filed cross-objections under Order 41, Rule 22 of the Code of Civil Procedure, 1908 (for short the Code) praying therein that the judgment and decree of the Trial Court be reversed and a decree for divorce on the ground of cruelty be passed in his favour. The appeal of the appellant-wife was dismissed vide the judgment impugned in this Letters Patent Appeal alongwith the cross-objections which were not pressed.
4. We have also made efforts for reconciliation between the parties but without any result.
5. When anyone of the parties, without reasonable excuse withdraw from the society of the other, the aggrieved party has a right under Section 9 of the Act to apply to the District Court for restitution of conjugal rights and the Court on being satisfied of the truth of the statements made in such petition has a discretion to pass a decree for restitution of conjugal rights. The law pre-supposes that the relief under the Act would be granted only to the genuine and aggrieved party and such a relief shall not be permitted to be used as a camouflage to hide or cover the sins committed or to be used as an instrument in future for defeating the right of the other party. Section 23 of the Act enjoins a duty upon the Court that in any proceedings under the Act whether d
