Om Parkash Sharma vs Shrimati Nirmal Sharma

Dua, J.—This is a petition u/s 24, Civil Procedure Code, for the transfer of the suit filed by Om Parkash Shargaa, petitioner, for restitution of conjugal rights against his wife. According to the allegations contained in this application the parties were married to each other some time in November, 1959, and they lived happily together till September 1960 when Smt. Nirmal Sharma the wife left for Jullundur where her parents reside. Her father is a Lecturer in Punjabi in the D. A. V. College, Jullundur. In spite of the petitioner''s repeated efforts respondent has not come back. In November 1961 an application u/s 488, Criminal Procedure Code, was filed by the wife against the husband for her maintenance and the maintenance of their child. In this connection it is averred that she deliberately made false allegations against her husband''s character. This application was dismissed in default on 7th August, 1962. In December 1961 the wife had also instituted a suit against the husband for the return of her isthihan. This suit is stated to be still pending in the Court of the Senior Sub-Judge, Jullundur. On 10th March, 1962, the petitioner instituted the present application for restitution of conjugal rights against the respondent. It is averred that to begin with the Sub Judge has been insisting on a settlement of the matter between the parties and as this was a legitimate effort the petitioner complied with all the directions which the Court gave from time to time though after a certain time the petitioner felt that the learned Sub Judge was unnecessarily prolonging the proceedings. On 9th May, 1962, the learned Sub-Judge is stated to have desired the respondent''s father and the petitioner''s brother who are both colleagues on the staff of the D. A. V. College, Jullundur, to meet at his house and accordingly invited them to tea. At the meeting there was no progress towards reconciliation but the learned Sub-Judge again called the petitioner to his house on 20th May, 1962. On his arrival there the petitioner found the learned Sub-Judge absent. On the following day the parties informed the Court that there was no chance of compromise but the learned Sub-Judge nevertheless insisted on 12th June, 1962, and again on 14th June, 1962, that the petitioner should go to the house of his father-in-law for the purpose of creating conditions for settlement. The petitioner pointed out that the wife must express her regret for the serious allegations made by her in the maintenance proceedings but the learned Sub-Judge did not exert this influence on the wife in that direction on the contrary he insisted that the petitioner should carry out his order without any condition. On 12th June, 1962, the husband offered to hand over to the respondent her jewellery and clothes which were in his possession but she declined to accept the same saying that she would do it in the Court where her suit was pending. The petitioner in compliance with the orders of the learned Sub-Judge went to his father-in-law''s house to stay there but he was insulted and humiliated by the members of the family including his father-in-law. The petitioner informed the learned Sub Judge about the treatment meted out to him but the Sub-Judge insisted on the petitioner going to his father-in-law''s place once again. Stress is laid on the assertion that the learned Sub-Judge has all the time been putting pressure on the petitioner only without saying anything to the wife and even without reprimanding her for the ill-treatment meted out to the petitioner. Various dates were given in the proceedings till 10th August, 1962, and all the time the learned Sub Judge continued to suggest to the petitioner ways and means of settling up the differences with his wife. On 10th August, 1962, the learned Sub-Judge again insisted on the petitioner going to his father in-law''s place and threatened to pass a heavy order of ad interim maintenance and costs of the proceedings in case of refusal.

After narrating these circumstances the petitioner has submitted that he has come to the conclusion that he cannot expect justice from the Court of the learned Sub-Judge because he has been deliberately siding with the respondent. The petitioner thereupon is stated to have requested the learned Sub Judge hot to proceed with the hearing of the case so as to enable him to move the learned District Judge for the transfer of this case; he is also stated to have pointed out that the petitioner wanted to summon the learned Sub-Judge as a witness to the various incidents for the purpose of showing that while the petitioner was always ready and willing to settle his differences with the respondent she and her parents were always disinclined to do so. This application came up for hearing on 13th August, 1962, when the learned Sub-Judge made certain observations suggesting that it was perhaps petitioner''s counsel who had initiated the idea of the learned Sub-Judge being cited as a witness. On 17th August, 1962, the petitioner moved the learned District Judge u/s 24 of the CPC for the transfer of the case and on 18th August, 1962, further proceedings in the trial Court were stayed and the order of stay was communicated to the trial Court. In spite of the stay order the learned Sub-Judge is stated to have taken up the application and dismissed the same on 20th August 1962. This according to the petitioner betrays the prejudiced mind of the learned Sub Judge against the petitioner. Reference has also been made to the attitude of the learned Sub-Judge in accommodating the counsel for the respondent and refusing accommodation to the petitioner''s counsel on 13th August, and 28th August, 1962. On 21st September, 1962. the learned District Judge, Jullundur, rejected the petitioner''s application for the transfer of the case. It is in these circumstances that the present petition has been presented for the transfer of the proceedings. On 14th January, 1963, the Motion Judge issued notice on this application and also stayed further proceedings. A copy of the petition was sent to the trial Judge for comments.

In his comments the learned Sub-Judge has stated that as the parties belong to respectable families and are educated he made every honest effort to effect settlement of the dispute in accordance with the provisions of the Hindu Marriage Act. The parties are young and have a son one year old and these circumstances weighed with the learned Sub-Judge in making efforts for reconciliation. It has been admitted that the lather of the lady and the brother of the petitioner actually net to discuss the differences between the spouses but in spite of earnest endeavour on the part of the Sub-Judge discussion between the two failed to bring out fruitful result. The learned Sub Judge has categorically denied that he ever invited the parties or their parents to tea at his house. On 21st May, 1962 the case was fixed for the statements of the parties for 2nd June, 1962 on which date the respondent did not appear and she was burdened with Rs. 7/- as costs because of her default on that date. The respondent''s counsel presented an application for fixation of maintenance and grant of defence expenses u/s 24 of Hindu Marriage Act. The petitioner was directed to put in his reply on 4th June, 1962, on which date he filed his reply and the case was fixed on the following day for consideration of this application. On that date the husband made a further application for reply on which the case was adjourned to 12th June, 1962. On the last mentioned date the arguments were addressed and the statement of the respondent was recorded and 14th June, 1961, was fixed for further proceedings. On that date the parties again requested for adjournment for effecting compromise and the case was fixed for 18th July, 1962. The parties having failed to settle 1 htir differences the case was fixed for 25th. July 1962, for arguments. The 1 arned Sub-Judge has also denied knowledge of the petitioner having gone to his father-in-law''s house or of his ill-treatment there. He has further controverted the assertion that he ever suggested that the parties should stay with a common friend. Efforts made by the learned Sub-Judge are asserted to have been in good faith and in accordance with law; he has also denied putting pressure of any sort on any party in this connection. It has been stated that it is incorrect that any proceedings were taken on the application after the stay order.

On 11th October, 1963, the respondent made an application in this Court for directing the petitioner to pay her Rs. 300/- on account of expenses for defending the present petition. A copy thereof was given in advance to the learned counsel for the petitioner. This procedure was adopted because on 30th August, 1953, adjournment had been sought on behalf of the respondent by her counsel for this purpose and it was granted on the condition that a copy would be given to the petitioner''s learned counsel. From then up to the middle of January, 1964 the parties'' counsel took adjournments of this petition from time to time for the purpose of exploring possibility of settlement between the parties. It may be mentioned that the respondent''s father has also since expired, and though it was hoped that in the changed situation there were better chances of settlement yet this hope has not materialised.

On the merits the learned counsel for the petitioner has concentrated on the contention that the learned Sub-Judge has, in his zeal to bring about a compromise, been putting pressure on the petitioner and insisting on him to submit to the unreasonable demands of the respondent and her relations. This, according to the learned counsel, has created a reasonable apprehension in the petitioner''s mind that he would not get fair deal and impartial justice from the Court of this learned Sub-Judge. He has also submitted that the comments of the learned Sub-Judge are not in accordance with the whole truth and has submitted that I should hold that the learned Sub-Judge had actually invited the relations of the parties to tea at his house and had also suggested that the petitioner should go to his father-in-law''s house; his denial according to the learned counsel is untrue.

After hearing the counsel for the parties, in my opinion, the circumstances mentioned in the petition are insufficient to induce this Court.to hold that the petitioner can have any reasonable apprehension in his mind that he would not get fair deal or impartial justice from the Court of the learned Subordinate Judge. The scheme of the Hindu Marriage Act clearly suggests that before proceeding to grant any relief under this Act, it shall be the duty of the Court in the first instance, in every case where it is possible to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties: (see section 23(2) of the Act). If, therefore, keeping in view that the parties to these proceedings, who are both educated and have also an offspring, are behaving in an unreasonable manner and are ignoring the serious consequences which are likely to ensue from their conduct the learned Subordinate Judge tried his best to resolve their differences, I do not think any reasonable man can possibly entertain an apprehension that he would not get justice from the learned Subordinate Judge''s Court. Even if the learned Subordinate Judge has in his righteous zeal overdone in insisting on the husband to be a little more accommodating-though I am not satisfied on the existing record that 1 e has shown undue zeal -I do not think a person in the position of the petitioner, with his education and with his experience in the education line, should reasonably entertain any apprehension that the learned Subordinate Judge would not mete out even-handed justice.

But since the petitioner seems to have somehow formed the impression that this learned Subordinate Judge has tried to persuade the petitioner into a settlement by compelling him to submit to what he considers to be humiliation at the hands of his wife, I think it would serve the ends of justice better if the case is transferred to the Court of the learned District Judge himself who would, I hope also try his best to bring about reconciliation between the parties in accordance with the scheme of the Hindu Marriage Act. I have deliberately and purposely not directed the petitioner to pay to the respondent expenses for these proceedings which I would perhaps have otherwise ordered such an order may add to the bitterness on the part of the husband towards his wife and may lessen the chances of a settlement. The respondent''s counsel also did not seriously press this petition presumably because he had already been paid bis fee. I must make it quite clear that I entertain no doubt about the impartiality and the sense of duty of the learned Subordinate Judge and the transfer of this case is by no means meant to cast any reflection on his impartiality or efficiency.

The requisite of indispensable tolerance and mutual understanding in matrimonial life, as its basic foundation, it may be observed, is far too little realised in many marriages these days. Normally constituted spouses should not make mountains out of mole hills and common sense and common experience must have some say in the matter. Spouses must take each other with their idiosyncrasies as well as their attractions and ordinary considerations demand that allowances have to be made for temperament in the give and take of domestic life. The normal wear and tear and shocks of the average married life have to be put up with in the larger interests of the society and of the progeny: this is what every citizen owes to himself to his children and to the community. Hypersensitive temperaments must be disciplined and kept within reasonable bounds and incompatibility should similarly be disciplined into compatibility, for sanctity of marriage has its social importance as well. I have made these observations because the parties before me who are not only highly educated but are in the teaching line are expected to train and educate the younger generation to grow into good and balanced citizens. It is appropriate to point out that the conduct of the parties, to this controversy in their private life is likely to influence their students in a subtle manner much more effectively than what they would teach them theoretically; more so would it influence their child.

They, therefore, owe to themselves to their child as also to their profession and to the community that they realise the importance of what has been stated above. I need not pursue this matter any further.

I find from the record that there is also an application filed on behalf of the wile claiming expenses and ad interim maintenance which is awaiting disposal by the Court below. It will be desirable that this application is disposed of before the main case, in accordance with the decision given by this Court in Smt. Malkan Rani v. Krishan Kumar (1960) 62 P L.R. 575.

I accordingly transfer the case pending in the Court of the learned Subordinate Judge to that of the learned District Judge to decide it in accordance with law and in the light of the observations made above. The parties would, however, bear their own costs in these proceedings. The parties are directed through their counsel to appear before the District Judge on 6th April, 1964, when a short date would be given for further proceedings.