Sanyogita Devi vs Lalit Kumar Khurana

Rajendra Nath Mittal, J.—This appeal has been filed by Smt Sanyogita Devi against the judgment and decree of the District Judge, Karnal dated 30th July, 1983.

Briefly the facts are that the parties were married at Karnal on 1st March, 1979 A daughter named Leena was born out of the wedlock on 16th April, 1980. It is alleged by the wife that the parents of the Respondent were greedy persons and started torturing and mal-treating her on the ground of insufficiency of dowry. It is further alleged that the Respondent without any reasonable excuse withdrew from her society with effect from 9th November, 1980. Consequently she filed a petition u/s 9 of the Hindu Marriage Act (in short referred to as "the Act") for restitution of conjugal rights.

The petition was contested by the Respondent who controverter the allegations of the Petitioner and averred that he and his parents never mal-treated her. He also filed a counter claim u/s 23-A of the Act for seeking divorce on the ground of desertion and cruelty on the part of the Petitioner towards him.

The case of the Petitioner was fixed for evidence for 7th May, 1983. On that date it was found that the witnesses of the Petitioner had not been served and, therefore, the case was adjourned for 2nd June, 1983. Again the witnesses were not served by that date too and the case was adjourned to 23rd July, 1983. On that day the witnesses were not present and at the request of the counsel the case was adjourned to 29th July, 1983 subject to payment of Rs. 20/- as costs. On the adjourned date the counsel for the Petitioner made a statement before the Court that the Petitioner had not contacted him and even the costs has not been made available for payment to the Respondent. He further stated that he bad no objection if the petition was dismissed for non-prosecution. The counsel for the Respondent opposed the dismissal of the petition for non-prosecution and requested that a decree of divorce u/s 23 A of the Act be passed in favour of the Respondent. The case was adjourned by the Court to 30th July, 1983. On that date the counsel for the Respondent made a statement that he had no objection if a decree for restitution of conjugal rights was passed in favour of the Petitioner. The learned Court on the basis of the statement of the counsel for the Respondent passed a decree for restitution of conjugal rights.

The Petitioner having felt aggrieved against the judgment of the trial Court has come up to this Court in appeal. The Respondent filed cross-objections under Order 41 Rule 22 of the Cede of CPC praying 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.

It is contended by Mr. Bali that no decree on the basis of the statement of the Respondent could be passed in favour of the Appellant. He submits that it was the duty of the Court to satisfy whether the conditions as laid down in Section 23(1) of the Act had been satisfied or not before passing the decree for restitution of conjugal rights which it did not do. According to him, the decree, therefore, is illegal. In support of his contention he places reliance on Patel Manilal Harjivandas v. Gangaben Ganeshbhai 1979 H.L.R 288.

I have given due consideration to the argument. It is true that the provisions of Section 23(1) are mandatory and the relief under the Act cannot be granted by a Court if the conditions of the said Sub-section are not fulfilled. However, in the present case it has not been shown by the Learned Counsel for the Appellant under which clause of Section 23(1) the relief could not be granted The cast of the Appellant could be covered by Clause (c) which provides that the relief could not be granted if the petition was presented or prosecuted in collusion with the Respondent However, no such contention has been raised by the Appellant much less proved By virtue of Section 21 the provisions of the CPC are applicable to the proceedings under the Hindu Marriage Act. Order 9, Rule 8 of the CPC provides that where the Defendant appears and the Plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed unless the Defendant admits the claim or a part thereof in which case the Court shall pass a decree against the Defendant upon such admission As stated above, the Respondent admitted the claim of the Appellant for restitution of conjugal rights and in pursuance of the said provision there was no other alternative for the trial Court but to grant a decree in favour of the Appellant. Now she cannot make a grievance against the decree. The principal laid down in Patel Manilal Harjivandas''s case (supra) cannot he disputed. How-ever, that case is "distinguishable on facts in my view Mr. Bali cannot derive any benefit from the observations therein.

For the aforesaid reasons I do not find any merit in the appeal and dismiss the same. No order as to costs. The cross objections are dismissed as not pressed.