Sanyogata Devi vs Lalit Kumar

R.P. Sethi, J.—Contrary to their pleadings and apparently conciliatory gestures made by the parties they have prolonged this litigation for over a decade. The litigation has been perpetuated in futility by the casual approach adopted by the Trial Court in dealing with the matter of matrimonial dispute between the parties. Whereas the wife has been pretending to be interested in rehabilitation of conjugal relations the husband has shown his over enthusiasm of restoration of the metrimonial ties when he conceded a decree of restitution of conjugal rights in favour of the wife. However, none of the parties appear tp be satisfied with the relief granted as the wife herself filed an appeal against the decree granted in her favour and the husband has filed a petition for divorce despite the conceded prayer of his wife for restitution of matrimonial obligations. The consistent efforts made by the Courts for conciliation between the parties have failed on account of the adamant attitude adopted by the spouse.

The facts giving rise to the filing of the present appeal are that the parties were married on 1.3.1979 and out of the wed-lock a daughter namely Leena was born on 16.4.1980. The appellant-wife alleged that parents of the husband being greedy started torturing and mal-treating her on the alleged ground of insufficiency of dowry culminating in the respondents withdrawal from her society with effect from 9.12.1980 with the result that she filed a petition u/s 9 of the Hindu Marriage Act, 1955 (for short the ''Act'') for restitution of conjugal rights. The petition was contested by the respondent-husband who filed a counter claim u/s 23-A of the Act for seeking divorce on the ground of desertion and cruelty attributed to the wife, allegedly as a counter blast to the prayer of the petitioner. None of the parties appear to the genuinely interested in the prosecution of their cases as is evident from the various adjournments granted in the case for production of evidence. On 29.7.1983 the Counsel for the appellant made a statement before the Court that she had not contacted him and that he had no objection if the petition was dismissed for non prosecution. The respondent-husband who had sought divorce in his counter claim opposed the prayer of the wife for dismissal of the petition for restitution of conjugal rights and instead prayed that a decree, be granted in her favour. The Trial Court obliged the husband and passed decree in favour of the wife apparently affording an opportunity to the husband to subsequently file a petition for divorce. When the appellant filed an appeal against the judgment passed in her favour, the respondent-husband again filed a cross-objections under Order 41, Rule 22 of the Code of Civil Procedure, 1908 (for short the ''Code'') praying therein that the judgment and decree of the Trial Court be reversed and a decree for divorce on the ground of cruelty be passed in his favour. The appeal of the appellant-wife was dismissed vide the judgment impugned in this Letters Patent Appeal alongwith the cross-objections which were not pressed.

We have also made efforts for reconciliation between the parties but without any result.

When anyone of the parties, without reasonable excuse withdraw from the society of the other, and aggrieved party has a right u/s 9 of the Act to apply to the District Court for restitution of conjugal rights and the Court on being satisfied of the truth of the statements made in such petition has a discretion to pass a decree for restitution of conjugal rights. The law pre-supposes that the relief under the Act would be granted only to the genuine and aggrieved party and such a relief shall not be permitted to be used as a camouflage to hide or cover the sins committed or to be used as an instrument in future for defeating the right of the other party. Section 23 of the Act enjoins a duty upon the Court that in any proceedings under the Act whether defended or not, the Court must be satisfied about the existence of the grounds necessary for the grant of the relief and also the absence of the disabilities detailed in the aforesaid Section. In a matrimonial case, the Court is required to put itself into a position of the wife or the husband of the both to see whether the attitude adopted by the parties is reasonable or not and should always expect and require to get some corroboration either from the evidence or from the circumstances in regard to the material particulars relating to the act alleged by the one against the other. Such a satisfaction cannot be left to be presumed or rendered by a mere balance of probabilities and circumstances. The principle underlying Section 23 of the Act is that the wrong doer should not be permitted to take advantage of his or her own wrong while seeking relief under the Act from the Court. Failure on the part of the matrimonial Court to have regard to the provisions of Section 23 of the Act renders the whole of the proceedings illegal being devoid of any legal force.

In the instant case, the wife despite having made prayer for the grant of relief of restitution of conjugal rights did not take any effective step for prosecution of the case as is evident from the orders recorded by the Court on 4.2.1983, 7.5.1983, 2.6.1983, 23.7.1983, 29.7.1983 and ultimately on 30.7.1983 when the matrimonial case was settled by granting a decree in favour of the defaulting party, that is, the appellant. It is worthwhile to mention that the appellant-wife was not prevented from prosecuting her case on the round of poverty or non-arrangement of funds because she had been granted ad-interim monthly maintenance by the Trial Court.

The decree of restitution of conjugal rights has been tried to the justified under the provisions of the Code as provided under Order 9, Rule 8, Order 12, Rule 6 and Order 23, Rule 3 of the Code. A bare perusal of the aforesaid provisions would clearly show that Order 23, Rule 3 was not in any way applicable as the parties had not compromised and no decree could be granted in favour of the wife under Order 12, Rule 6 because no admission could be presumed to have been made in the presence of the counter claim preferred by the husband. The admission even if made should have been ascertained and determined u/s 23 of the Act which was completely ignored by the trial Court. The provisions of Order 9, Rule 8 would also not be applicable in asmuchas order 9 of the Code deals with "appearance of parties and consequence of non appearance". The scheme of the Order and the Rules incorporated therein clearly shows that it is applicable to hearing of the suit before the trial begins after service of summons upon the defendant to appear and answer and shall not be applicable thereafter. The procedure regarding subsequent stages of the trial are incorporated in Order 17 of the Code. The provisions would also be not applicable inasmuch as the plaintiff was represented by the Counsel at the time when the decree was passed and infact had submitted that he would not have any objection if the petition is dismissed for default of appearance. It is true that mere physical presence of a party is no presence as provided in law but it is equally true that the Court purporting to pass an order allegedly on the ground of absence of a party was required to give a finding that the matter was being decided in the absence of the party as the person appearing for such a party was not in a position to effectively participate in the proceedings for taking further action in the matter. Resort to the provisions of Order 9, Rule 8 of the Code appears to have been presumed by the learned Single Judge which the record reveals was never resorted to by the Trial Court.

It is worthwhile to mention that the Trial Court had not passed any order regarding the counter claim of the respondent-husband which in law is presumed to be still pending with the Trial Court though being in a state of suspended animation.

The parties in the instant case have infact dodged each other having resort to futile litigation for over a decade with no purpose or object in mind. The Trial Court particularly the Matrimonial Court is required to be vigilant and take and conduct proceedings in accordance with the mandate of law and not at the whims or asking of a party. The Trial Court has been a contributing agency in perpetrating futile litigation between the parties. It is true that acceptance of this appeal would force the parties to further litigation but the said tortuous cannot be avoided in asmuch as the record reveals that the husband has filed a petition seeking divorce, the proceedings of which have been stayed by this Court in this appeal. The parties who appear to be instrumental in dismentaling their matrimonial home are to be left to their own wisdom and judgment and cannot in any way by wriggled out of the mud in which they have entrapped.

In view of what has been stated herein above, the judgment and decree for restitution of conjugal rights passed in favour of the appellant, which is impugned in this appeal, is set aside. The counter-claim of the husband is held to be still pending in the Trial Court and the parties are relegated to the position which existed before 29.7.1983. The Trial Court shall proceed afresh in the matter and dispose of the petition of the wife as well as the counter-claim of the husband strictly in accordance with the provisions of law and in the light of this judgment.

10.The parties through their Counsel have been directed to appear before the Trial Court on 21.3.1994 when further proceedings shall be initiated. The record of the Trial Court shall be immediately sent back so as to reach there before the date fixed. The parties to bear their own costs in this futile litigation.