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1995 Supreme(MP) 411
U.L. Bhat, D Verma
Devram Bilve
vs
Smt. Indumati
Decided on : 29 March, 1995
A single appeal is maintainable against a judgment and decree passed in a suit in which a counterclaim was made, even if the appeal is against different parts of the judgment and decree.
Headnote:
RESTITUTION OF CONJUGAL RIGHTS - SPECIAL MARRIAGE ACT, 1954 - SECTION 22 - CRUELTY - CONDONATION - DIVORCE - SECTION 27(1)(D) - INTERPRETATION - COURT'S DISCRETION - REASONABLE EXCUSE - BURDEN OF PROOF - RECONCILIATION PROCEEDINGS - WIFE'S WILLINGNESS TO LIVE WITH HUSBAND - HUSBAND'S REFUSAL - APPEALABILITY OF SINGLE APPEAL AGAINST JUDGMENT AND DECREE - ORDER 8 C.P.C. - COUNTER CLAIM - RES JUDICATA.
Fact of the Case:
Wife filed a petition for restitution of conjugal rights under Section 22 of the Special Marriage Act, 1954, alleging that her husband had turned her out of their matrimonial home in 1984. The husband filed a counterclaim for divorce under Section 27(1)(d) of the Act, claiming that the wife had committed acts of cruelty by repeatedly sending complaints to his superior officers, causing him severe stress and strain. The trial court dismissed the wife's petition and granted the husband a decree of divorce. The wife appealed to the High Court.
Finding of the Court:
The High Court allowed the wife's appeal, set aside the trial court's judgment and decree, and granted her a decree for restitution of conjugal rights. The court held that the wife had not committed any cruelty on the husband, and that the husband had condoned any cruelty that may have been committed by her. The court also held that the husband had failed to prove that he had a reasonable excuse for withdrawing from the society of the wife, and that he had not made out grounds for a decree of divorce.
Issues: 1. Whether the wife had committed cruelty on the husband, entitling him to a decree of divorce under Section 27(1)(d) of the Special Marriage Act, 1954? 2. Whether the husband had condoned any cruelty committed by the wife? 3. Whether the husband had a reasonable excuse for withdrawing from the society of the wife? 4. Whether the husband had made out grounds for a decree of divorce? 5. Whether the wife's single appeal against the judgment and decree of the trial court was maintainable, given that her petition for restitution of conjugal rights was rejected while the husband's counterclaim for divorce was allowed?
Ratio Decidendi: 1. The court held that the wife had not committed any cruelty on the husband. The court noted that the wife had repeatedly asked her husband for permission to go to the place of his posting, but he had been apprehensive that she might create a scene and some untoward incident might take place. The court also noted that the husband had come to Indore during the pendency of the proceedings and had stayed with the wife in a hotel, and that it was reasonable to assume that they had revived normal conjugal relations during their stay. 2. The court held that the husband had condoned any cruelty committed by the wife. The court noted that the husband had not pleaded any subsequent cruelty by the wife after their joint stay in the hotel, and that he had refused to take her back as his wife during reconciliation proceedings initiated by the courts. 3. The court held that the husband did not have a reasonable excuse for withdrawing from the society of the wife. The court noted that the wife had always been ready and willing to live with her husband and to discharge her duties as a sincere and faithful wife in the matrimonial home, but it was the husband who had always tried to dissuade her from doing so. 4. The court held that the husband had not made out grounds for a decree of divorce. The court noted that the husband had failed to prove that he had a reasonable excuse for withdrawing from the society of the wife, and that he had also failed to prove that he had been treated with cruelty by her wife. 5. The court held that the wife's single appeal against the judgment and decree of the trial court was maintainable. The court noted that the husband had not filed a counter suit, but had only made a counterclaim as required under the provisions of Order 8 C.P.C., and that there was only one suit before the trial court in which only one decree was passed.
Final Decision: The High Court allowed the wife's appeal, set aside the trial court's judgment and decree, and granted her a decree for restitution of conjugal rights. The husband's counterclaim for divorce was dismissed.
D. Verma, J.
1. These two Letters Patent Appeals have been filed by the husband, who was non-applicant in the Trial Court, against his wife, who was applicant in the Trial Court against the judgment and decree dated 18.11.1993 passed by the learned Single Judge in F.A. No. 113/92 (Smt. Indumati Bilve v. Dewaram Bilve), arising out of the judgment and decree dated 1.5.1992 passed by the Addl. Judge to the Court of the District Judge, Indore, in Special Marriage Case No. 411/91, whereby the applicant's (respondent herein) application for restitution of conjugal rights filed by her under Section 22 of the Special Marriage Act (for short 'the Act') was rejected and the non-applicant's (appellant here in) counter claim for divorce under Section 27(1)(d) read with Section 35 of the Act, was allowed.
2. The facts of the case, in brief, compass are mentioned herein below. Parties to the litigation were married on 2.11.1982 before the Marriage Officer i.e. the Additional Collector, Khargone. They lived as husband and wife together for sometime. Wife (applicant) was already working as a Teacher. At that time the husband was not appointed in Government service but he subsequently got his appointment a Naib Tehsildar on 13.12.1982 and was posted at Biora. According to her averments made in the petition the parties lived together as husband and wife upto 27.12.1984 even though they were posted at different places. She has averred that on 27.12.1984 she was turned out from her matrimonial home by her husband. After she was turned out, she had made complaints to the police and other various superior officials of her husband. After exchange of notices between the parties, as nothing fruitful materialised, she filed a petition claiming restitution of conjugal rights in the Indore Court on 19.4.85.
3. The appellant (herein) was noticed. He appeared and filed his written statement. He also made a counter claim and claimed a decree of divorce on the ground that his wife had been guilty of committing acts of cruelty on him inasmuch as that she had been repeatedly sending complaints to his superior officers making certain false and baseless averments. On account of this he was subjected to several enquiries and has undergone severe staress and strain. According to him this amounts to committing of cruelty by wife on him, entitled him for a decree of divorce as mentioned above.
4. On the written statement being filed, the wife filed additional reply to the counter claim of the husband and submitted that the husband cannot be granted any decree of divorce as he cannot be rewarded for his own faults and accordingly the prayer made by the husband is liable to be rejected.
5. On the strength of the pleadings of the parties the learned Trial Court framed issues and gave opportunities to parties to lead evidence. Wife examined Nathu as A.W. 1 and Bhikya as A.W. 2 who have deposed that they had seen the parties living together as husband and wife. Rajaram (A.W. 3) who is the father of the wife-applicant and Smt. Indubai (A.W. 4) herself have been examined.
6. As against this the appellant has examined himself as non-applicant (N.A.W. 1).
7. Both the parties had filed correspondence between them after marriage and even during the pendency of the proceedings in the Trial Court as also the complaints made by the wife and the action taken on those complaints by the department against the husband.
8. The learned Trial Court after recording evidence and hearing arguments delivered judgment and passed a decree dismissing the claim for restitution of conjugal rights filed by the wife; but a decree of divorce was passed in favour of the husband on the ground that the acts of the wife amounted to committing of cruelty. Being aggrieved by the said judgment and decree the wife Filed first Appeal No. 113/92.
9. The learned Single Judge by his judgment dated 18.11.1993 has allowed the appeal, set aside the judgment and decree of the Trial Court and instead has granted a
