Back
1999 Supreme(MP) 414
A.K. Mathur, S Kulshreshtha
C.J.
Lalit Gurubaxani
vs
Smt. Usha Gurubaxani
DECIDED ON : 30 June, 1999
A party who fails to raise an objection to the jurisdiction of the court at the first available opportunity waives the objection.
Headnote:
HINDU MARRIAGE ACT, 1955 - SECTION 9, 19 - RESTITUTION OF CONJUGAL RIGHTS - JURISDICTION - WAIVER - CONDUCT OF PARTIES - DISCRETION OF COURT - IRRETRIEVABLE BREAKDOWN OF MARRIAGE - SECOND MARRIAGE.
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 insisted on living according to her own wishes. The trial court granted a decree of restitution of conjugal rights, which was upheld by the first appellate court.
Finding of the Court:
The High Court held that the husband had waived his objection to the jurisdiction of the court by not raising it at the first available opportunity. The court also held that the husband had been given ample opportunity to cross-examine the wife's witnesses and to produce his own witnesses, but he had failed to do so. The court further held that the husband's conduct was reprehensible and that he could not be permitted to benefit from his own wrong. The court also declined to exercise its discretion in favor of the husband, given his conduct.
Issues: 1. Whether the District Court, Jabalpur had jurisdiction to try the suit for restitution of conjugal rights. 2. Whether the husband had been given sufficient opportunity to cross-examine the wife's witnesses and to produce his own witnesses. 3. Whether the marriage had irretrievably broken down and whether any useful purpose would be served in affirming the decree of restitution of conjugal rights.
Ratio Decidendi: 1. The objection of jurisdiction must be raised at the first available opportunity. Failure to do so constitutes a waiver of the objection. 2. The court has the discretion to grant or refuse a decree for restitution of conjugal rights. However, the court will not exercise its discretion in favor of a party who has been guilty of misconduct or who has failed to take reasonable steps to preserve the marriage. 3. The fact that a marriage has irretrievably broken down does not necessarily mean that a decree for restitution of conjugal rights should be refused. The court will consider all the circumstances of the case, including the conduct of the parties, before making a decision.
Final Decision: The High Court dismissed the husband's appeal and upheld the decree of restitution of conjugal rights.
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 alongwith 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 monetory 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 his 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 any
