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1999 Supreme(MP) 411
IN THE HIGH COURT OF MADHYA PRADESH (JABALPUR BENCH)
A.K. Mathur, C.J. and S.K. Kulshreshtha, J.
Appellants: Lalit Gurubaxani
Vs.
Respondent: Smt. Usha Gurubaxani
L.P.A. No. 359 of 1997
Decided On: 30.06.1999
For Appellant/Petitioner/Plaintiff: Ravindra Shrivastava and Prem Francis, Advs.
For Respondents/Defendant: Anjali Banerjee, Adv.
The objection of jurisdiction must be raised at the first available opportunity, and failure to do so constitutes a waiver of the objection.
Headnote:
HINDU MARRIAGE ACT, 1955 - SECTION 9 - RESTITUTION OF CONJUGAL RIGHTS - JURISDICTION - WAIVER - CONDUCT OF PARTIES - DISCRETION OF COURT - INTERPRETATION OF SECTION 19 AND 21 OF THE CODE OF CIVIL PROCEDURE, 1908.
Fact of the Case:
Wife filed a petition for restitution of conjugal rights alleging that her husband had driven her out of the matrimonial home and had expressed his intention to marry another woman. The husband contested the petition, alleging that the wife's behavior was not affectionate towards him and that she had neglected her duties as a wife.
Finding of the Court:
The trial court found in favor of the wife and ordered the husband to restore conjugal rights. The husband appealed, arguing that the trial court lacked jurisdiction to hear the case and that he had not been given a fair opportunity to cross-examine the wife's witnesses. The High Court dismissed the appeal, holding that the husband had waived his objection to jurisdiction by failing to raise it at the first available opportunity and that he had been given ample opportunity to cross-examine the wife's witnesses.
Issues: 1. Whether the District Court, Jabalpur had jurisdiction to try the case. 2. Whether the husband had been given a fair opportunity to cross-examine the wife's witnesses. 3. Whether the trial court erred in exercising its discretion to grant a decree for restitution of conjugal rights.
Ratio Decidendi: 1. The question of jurisdiction must be raised at the first available opportunity. The husband failed to raise the objection of jurisdiction before the trial court or the first Appellate Court, and therefore, he cannot be heard for the first time in Letters Patent Appeal on the question of jurisdiction. 2. The husband had been given ample opportunity to cross-examine the wife's witnesses, but he did not avail of the same. Therefore, he cannot now argue that he was not given a fair opportunity to cross-examine the witnesses. 3. The trial court did not err in exercising its discretion to grant a decree for restitution of conjugal rights. The husband's conduct was reprehensible, and he cannot be permitted to benefit from his own wrong.
Final Decision: The appeal was dismissed.
A.K. Mathur, C.J.
1. This is a Letters Patent Appeal directed against judgment and order dated 12-9-1997 passed by learned Single Judge in First Appeal No. 608 of 1996 (Lalit Gurubaxani v. Smt. Usha Gurubaxani) whereby the learned single Judge has dismissed the First Appeal filed by the appellant and confirmed the judgment and decree of restitution of conjugal rights passed by the trial Court.
2. Brief facts which are necessary for disposal of this appeal are that marriage between the appellant and the respondent took place at Satna according to Hindu rites. The wife (respondent) stayed at her matrimonial home at Satna for about three months. It is alleged that the behaviour of the husband and his family members was not very cordial with her. It is alleged that she was neglected by the members of the husband's family and was not allowed to sit along with other family members of the husband. It is alleged that her husband expressed his intention to marry one Ku. Hemlata and also expressed number of times that the present marriage had been forced upon him and it had been solemnised against his wishes and without obtaining his consent, only to obtain dowry and other valuable gifts from the family of the wife. It is further alleged that the husband demanded certain monetary benefits or certain gifts like car etc. and those demands were not fulfilled. It is alleged that she was driven out from the matrimonial home on 15-10-1991 and was asked to bring money for purchase of car. It is alleged that she came back to Jabalpur and had written letters to her husband requesting him to come to Jabalpur and take her to the matrimonial home but he did not come. Hence, present petition was filed.
3. The plea of the husband was that the petitioner had already filed number of cases including criminal cases against him and her behaviour was not very affectionate towards him. It is alleged by him that he and his family members' behaviour was very affectionate towards the wife and she was not driven out from her matrimonial home. It is also alleged by the husband appellant that since the respondent wife belongs to a rich family, she was in the habit of going out and spent lavishly and because of her arrogant nature she could not adopt the culture of his family. It is alleged that the wife insisted that she would live according to her wishes either at Satna or at Jabalpur. The allegation of dowry was denied.
4. On the pleadings of the parties, the learned trial Court framed number of issues including whether the wife was sent to her parents' home on 15-10-1991 :in order to perform second marriage. Learned trial Judge recorded the finding in favour of the wife and ordered restitution of conjugal rights. Though the husband (appellant) appeared before the trial Court initially but subsequently he absented; therefore, the learned trial Court passed ex parte decree on 30-9-1994. Thereafter the appellant filed a petition for setting aside the ex parte decree which was allowed and the parties were directed to proceed with the trial. The wife examined herself as P.W. 1 and her brother Prakash Keshawani was examined as P.W. 2. No witness was examined on behalf of the appellant/husband, nor the husband cross- examined the witnesses produced by the wife. Then another decree was passed by the learned trial Court on the basis of evidence placed before him by order dated 25-10-1996.
5. Aggrieved by the judgment and decree dated 25-10-1996, a First Appeal was preferred by the husband. The matter was heard by the learned single Judge and after examining the matter in detail, learned single Judge found that ample opportunity was given to the husband for cross-examining the witnesses of the wife. Learned single Judge reproduced in the judgment some proceedings in order to show that sufficient time was given to the appellant to enable him to cross-examine the witnesses produced by the wife, but no attempt was made on behalf of the husband to do so, or to produce an
