Kailash Devi vs Rajinder Prashad Sachar

C.G. Suri, J.—A petition for restitution of conjugal rights filed by the husband against his wife. Smt. Kailash Devi Appellant, u/s 9 of the Hindu Marriage Act, 1955, ended in a compromise or reconciliation on 27th July, 1988. On the said date the Appellant was in Canada but she was represented at the hearing of the case by her counsel who had instructions from her father. On the basis of statements made by the Appellant''s husband, Shri Rajinder Parshad Respondent and the appllant''s counsel, duly instructed by her father, a decree for restitution of conjugal rights was granted in favour of the husband and it was agreed that it shall not be executed for a period of six months. In the mean time, the Appellant or her relatives were supposed to arrange a visa enabling Shri Rajinder Parshad to join his wife in Canada. In the event of the visa being arranged as stipulated, the application for restitution of conjugal rights was to stand dismissed. Parties were left to bear their own costs.

The wife has filed an appeal against this consent decree. According to her, certain material circumstances have been ignored and the decree was against the provisions of the statute. It is urged that there was no material on the file from which the Court could be satisfied that the grounds for granting the relief existed or that the Appellant had withdrawn from the society of her husband without any reasonable cause. Moreover, the Appellant denied her father''s authority to make a statement on her behalf in Court. The compromise decree was further said to be the result of collusion and as such against the intentions of the legislature, or the object for which the Hindu Marriage Act was passed.

The Appellant''s counsel relies mainly on the Full Bench decision in Joginder Singh v. Smt. Pushpa, 1966 68 P.L.R. Suppl. 1 This ruling has, in fact, been relied upon by the Respondent''s counsel as well. The majority view was that a consent decree could be passed for restitution of conjugal rights and that such a decree was not a nullity. Such a consent decree could later form a basis for divorce u/s 13 (1A) (ii) of the Act. If such a decree is to be treated as a consent decree, it is not clear how a party can be expected to come up in appeal feeling aggrieved by an arrangement to which he or she had given consent.

In the present case, a marriage between the parties had been solemnized in April, 1967 The wife went over to live at the house of her husband''s parents immediately after the marriage and they lived together for about theree months. In the written statement filed by the Appellant wife to her husband''s petition for restitution of conjugal rights, there are no allegations of neglect desertion or cruelty against the husband and his averment that no child has been bom from the wedlock has provoked the rejoinder that in her-in-laws house no opportunity was afforded to the couple to have the freedom of sexual intercourse. It may appear that the Appellant has a brother or brothers settled in Canada. According to her, she had been induced to enter into matrimony on the assurance that the couple would be allowed to go to Canada. One of the reasons given for the differences or misunderstandings between the couple is that the Respondent and his parents were trying to back out of that undertaking.

After the Appellant had come away from the house of her-in-laws in July, 1967, she lost no time in arranging travel documents for going to Canda. On coining to know about this, the Respondent filed this petition for restitution of conjugal rights and sought a stay order restraining the Appellant from leaving India. A stay order as prayed for was actually granted by the trial Judge but was vacated on appeal by the High Court Advantage was immediately taken of the removal of the restraint and the Appellant had joined her brother in Canada by the time of the compromise. The stipulations in the consent decree may suggest that the Appellant was keen that her husband should join her there and she had undertaken to arrange the visa within a period of six months.

The decision of this appeal would not depend on whether the impugned order can be described as a consent decree or as successful culmination or fruition of the endeavours which every one concerned, including the Court, is enjoined to make u/s 23(2) of the Act to bring about a reconciliation between the parties. Collusion is something to be guarded against in such proceedings under the Hindu Marriage Act but it would be wrong to say that every compromise, irrespective of the purpose which it is sought to achieve, can be described as collusion between the parties. Words like collusion conspiracy, settlement, compromise, reapproachment, reconciliation etc. have only one thing in common that is to say that they proceed on a concensus of two or more minds. It is however the purpose for which the consensus of minds is arrived at as to the parties'' futhre course of action that would determine whether we should use the derogatory words collusion or conspiracy to the arrangement or whether we should use the more respectable words of compromise reconciliation etc. If the purpose to be achieved is unlawful or against the intentions of the legislature we would be justified in using the disparaging words, collusion or conspiracy but if the purpose for which the law has been enacted is achieved by a certain arrangement arrived at by mutual consent, we would have no justification for calling that mutually agreed upon arrangement as collusion b2tween the parties. In fact, marriage itself represents the communion of minds and depends for its success on the life-long tuning up of two hearts so that they can be made to beat in unison. An arrangement arrived at by mutual good will is something that we are called upon to achieve in proceedings under the Hindu Marriage Act. If every concert of minds is collusion then the law encourages the desirable type of collusion by giving it the more respectable term reconciliation in Section 23(2) of the Act. The impugned order passed on consent of the parties is a bona fide arrangement to make a success of the marriage and is not hit by any collusion. It is not necessary that in all cases the parties must stage a fight and examine witnesses before the Court could be satisfied about the bona fiedes or genuineness of an arrangemente of this type. The admission of a party could be a much better substitute then the statements of interested witnesses which are generally perjured. The Court can be satisfied about the existence of circumstances justifying the grant of relief u/s 23 of the Act on the pleadings or the conduct of the parties.

The Appellant had gone abroad and the litigation was being conducted on her behalf by a counsel who was receiving instructions from the Appellant''s father. The father had his daughter''s interest at heart and it cannot be said that the compromise was entered into on 27th July, 1968, by a person who had not been duly authorised in this behalf. There is no authority for the proposition that in such matrimonial cases the party must appear in person to make a statement before it can be treated as the basis of a compromise .

It was then argued on the basis of the Full Bench decision in Joginder Singh''s case (Supra) that as soon as the wife had agreed to live with her husband, the proceedings had become infructuous. In this case the restitution of conjugal rights had been postponed for a period of six months after the passing of the decree. Moreover, restitution of such rights is not rendered by a mere word of mouth. Matrimony imposes permanent and life long obligations which do not stand satis-lied or dfcharged by verbal assurances, stray acts or temporarily put up shows of a reconciliation

It was then argued by the Appellant''s counsel that the Appellant had done everything possible to perform her part under the compromise and that the Respondent was placing obstacles in her way in getting the necessary visa. These events happening after the passing of the decree have not to be gone into in this appeal. These are matters relating to the execution, satisfaction and discharge of the decree and appropriate proceedings can be taken u/s 47 or Order 21, Rule 2, CPC Code. The non cooperative conduct of the Respondent, it any, can also be pleaded as a defence in case the Respondent seeks to take out execution of the decree- If it is apprehended that a divorce petition may be filed on the ground that the decree for restitution of conjugal rights has remained uncomplied with for a period of two years or more than this contrary conduct of the Respondent can be proved by the Appellant in order to show that the Respondent is trying to take advantage of his own default or failure and that he cannot be granted relief in view of the provisions of Section 23(1)(a) of the Act.

The appeal is without force and is dismissed with costs.