K.B. Asthana, J.
1. This is an appeal preferred by the husband from the appellate judgment and decree of the learned District Judge of Ballia, affirming the decree of the Court of first instance, dismissing the petition for grant of divorce and in the alternative for judicial separation.
2. Admittedly the petitioner-appellant and the respondent were married on 7-2-1960 according to Hindu rites. For some time the husband and wife lived together amicably. According to the case of the husband, in his absence the wife went away on 30th of July 1960 without any cause and without his consent with her father and despite repeated efforts made by him for her to come back, she refused. A notice dated 12-8-1960 was served by the husband on the wife asking her to return. It appears that the wife had conceived when she was living with her husband soonafter the marriage and a son was born to her on 25-3-1961 at her father's house-On 28-7-1961 the husband filed a suit against the wife for restitution of conjugal rights. This suit was defended by the wife on the ground that she was turned out of the house by the husband and her mother-in-law after being beaten on 30-7-1960 and her life will be in danger at the hands of her husband and others if she were to return to him. On the finding that the wife was turned out on 30-7-1960 after being cruelly treated the trial court dismissed the suit for restitution of conjugal rights. An appeal from the judgment and decree in the said suit was finally dismissed by the High Court by its judgment dated 29-4-1966 and the finding of fact that the wife was turned out from the house of the husband on 30-7-1960 after having been beaten was affirmed. Then on 8-7-1967 the husband presented a petition under Sections 10 and 13 of the Hindu Marriage Act for a decree for divorce and in the alternative for judicial separation against the wife.
3. The allegation made for the purpose of the relief for divorce was that the wife voluntarily stayed away from the husband being wayward and unfaithful. A charge of adultery seems to have been hinted, though not specifically stated, in the petition.
4. For the purpose of judicial separation it was alleged that on 30-7-1960 the wife went away with her father without any reasonable cause and without the permission of the husband and since then never returned despite repeated efforts of the husband.
5. In her defence the wife denied the allegations of unfaithfullness and waywardness. She set up a counter case that her husband had married a second time and was living with the second wife. It was further pleaded that on 30-7-1960 she was cruelly beaten as she was unable due to illness to wash utensils and carry out other household chores, turned out of the house and she went away to her father's house. A plea was also raised that the finding in the previous suit for restitution of conjugal rights operated as res judicata as regards the plea of desertion.
6. At the trial the husband wasnot able to establish by any evidence that the wife was unfaithful or guilty of such misconduct as to deserve a divorce. The suit proceeded mainly as a suit for judicial separation and the main issue between the parties was whether on 30-7-1960 the wife left the house of her husband without reasonable cause and without the consent of the husband or did she leave under circumstanceswhich made out a reasonable cause. The trial Court found that the case of the wife was true, she was turned out of the house of her husband by the mother-in-law and the husband, after being cruelly beaten by them and a domestic servant. It was also held that the finding in the previous suit for restitution of conjugal rights on this question of fact operated as res judicata. The result was that the husband's suit was dismissed.
7. On appeal by the husband from the judgment and decree of the trial court the learned District Judge of Ballia agreeing with the view of the learned Civil Judge that the finding on the material issue of fact recorded in the previous suit for restitution of conjugal rights had the effect of res judicata and the same question could not be reagitated, affirmed the decree and dismissed the appeal. As appears from the judgment of the learned Dist. Judge the refusal by the trial Court to grant a decree for divorce was not questioned.
8. In this second appeal, before me, learned counsel for the appellant, contended that the finding that the wife was turned out from the husband's house on 30-7-1960 after being beaten recorded in the suit for restitution of conjugal rights would not have the effect of res judicata in the subsequent suit for judicial separation, inasmuch as in the former suit the Court had only to find out whether the wife could legally be compelled to go to her husband while in the latter suit the court had to find out whether the wife was guilty of desertion as defined in the explanation to Section 10 of the Hindu Marriage Act. I have not been able to appreciate the true import of the argument of the learned counsel. It seems that the learned counsel wanted to make out that in a suit for restitution of conjugal rights different facts have to be found out that the suits were different in nature, hence a finding recorded in the suit for restitution of conjugal rights being inherently on different set of facts relevant for the purpose of the suit would not operate as res judicata in the latter suit for judicial separation. The two suits being based on different causes of actions, namely one on desertion, while the other on the existence of the legal status of marriage and the refusal or neglect of the wife to perform her marital obligation. In this argument of the learned counsel there does not appear to be any substance as in its ultimate analysis the argument is based on the fact that the relief in the two suits differed. I do not think merely because the reliefs in two suits between same parties, filed one after the other, aredifferent in nature, a finding on an issue in the earlier filed suit on a matter in controversy between the parties and necessary for its decision would not operate as res judicata in the latter suit if the same matter is in issue between the parties and necessary for the decision of the latter suit also. It would always be so no matter the relief claimed in the latter suit also is different in form and nature.
9. The learned counsel was not able to satisfy me that in the earlier suit for restitution of conjugal rights it was not necessary for the court to record a finding on the disputed question of fact as to what had happened on 30-7-1960 when the wife left her husband's house. That issue clearly arose on the nature of the defence raised in that suit. As a suit under Section 9 of the Hindu Marriage Act afforded a relief for restitution of conjugal rights, if the suit is by the husband, on proof of the fact that the wife without reasonable excuse withdrew herself from the society of her husband, it was necessary for the court in that suit to find out whether the wife left her husband's house without reasonable excuse thus depriving the husband of her society. In that connection an inquiry into the happenings on 30-7-1960 became necessary. In the latter suit for judicial separation based on desertion the husband had to establish that the wife left his house without reasonable cause, the defence set up being that the wife left the house of her husband having been beaten and turned out in order to demolish the case of the husband that she left of her own accord without the permission of her husband and without any reasonable cause. I have no doubt in my mind that the courts below were right in holding that the finding on the crucial question of fact recorded in the former suit for restitution of conjugal rights will have the effect of res judicata and it was not open to the husband as a petitioner to re-agitate the same question of fact again in the latter suit. Thus there being a concurrent finding to the effect that the wife left her husband's house on 30-7-1960 for a reasonable cause which had not been shown to be vitiated by any error of law or procedure, would be binding in second appeal.
10. It was then submitted by the learned counsel for the appellant that the court below failed in its duty in not recording a finding though the evidence was on record that the husband repeatedly made attempts to bring back his wife but always met with a refusal, therefore, in the circumstance emerging from the evidence on record the wife's refusal at subsequent stages to come backwith her husband being unreasonable, she would be guilty of desertion as that would amount to having left the husband without reasonable cause and against his consent or will. I do not think the learned counsel can be allowed to raise any such argument for the first time in second appeal. No such case seems to have been agitated in the court below. Moreover, the pleadings in the petition confined the case of the petitioner to a desertion on 30-7-1960 and not alternatively to another subsequent date. The husband cannot now be allowed to have a case considered by the court which was not pleaded.
11. Further it appears to me that even if such a case were pleaded, hardly it would have any tenability in law. Once it is found that the wife had left the husband's house for a reasonable cause her living away from the husband would never become desertion unless the evidence comes that she condoned the conduct of the husband, went back to live with him, and then again came away without any reasonable cause and against the will of her husband. However, that is not a question on which I should further dilate in this appeal.
12. Learned counsel for the appellant having found that none of grounds raised by him in support of the appeal were tenable, fell back upon the provisions of Sub-section (2) of Section 23 of the Hindu Marriage Act and submitted that the decree of the court below was vitiated inasmuch as it did not make endeavour to bring about reconciliation between the parties before taking up the case or delivering a judgment. I am afraid on the language of Sub-section (2) of Section 23 of the said Act the learned counsel cannot sustain this argument. It is clear from Sub-section (2) tbat a duty is cast on the court to endeavour to bring about a reconciliation between the parties before it grants a relief under the Act. Here in the instant case the court at no stage ever granted any relief under the Act as both the courts below dismissed the petition under Sections 10 and 13 of the Hindu Marriage Act. Neither any relief for divorce nor any relief for judicial separation was granted. The courts below, therefore, were under no duty to first make an endeavour to bring about the reconciliation between the parties and Sub-section (2) was not attracted.
13. It was then suggested by the learned counsel that this Court as a second appellate court ought to afford an opportunity to the parties for reconciliation. If this suggestion of the learned counsel means that this Court is under a duty under Sub-section (2) of Section 23 of the Act, then it has absolutely no tenability. Inasmuch as there being no error of law or procedure in the decree of the court below, this Court in law is bound to dismiss the second appeal; it has no other jurisdiction. I have already held above that the courts below were not in error in not endeavouring for a reconciliation as they never intended to grant any relief under the Act. On that account their decree does not suffer from any legal error. This court, therefore, will have no jurisdiction to bring about any reconciliation.
14. However, I gave my serious consideration to the suggestion of the learned counsel for the appellant and tried to discover from the material on record any fact or circumstance which would have been helpful in bringing amity between the two spouses. I called upon the learned counsel for the respondent whether he had any suggestion to make and be of any assistance. On a mature consideration of all the circumstances, though I feel, that particularly in the society to which the parties belong there should always be an effort made by the well wishers of the spouses concerned to bring about conciliation and amity and a court should always endeavour to encourage all such attempts, whether by the learned counsel for the parties, or their relations or friends, irrespective of the applicability of Sub-section (2) of Section 23 of the Hindu Marriage Act, but in this case the facts and circumstances are such that there does not appear in the present mood of the parties that any tangible solution of their problem can be reached. The suit of the plaintiff for judicial separation has been dismissed. The legal relationship has not been disrupted. May be because of a son having been born good sense will prevail with the mother and father to come together, if not for themselves then for the future well being and prosperity of their progeny.
15. The result is that this appeal has no force and is dismissed with costs