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Smt. Leelawati Vs. Ram Sewak - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad High Court
Decided On
Case NumberFirst Appeal No. 169 of 1978
Judge
Reported inAIR1979All285
ActsHindu Marriage Act, 1955 - Sections 13(1A) and 23
AppellantSmt. Leelawati
RespondentRam Sewak
Appellant AdvocateS.K. Sharma, Adv.
Respondent AdvocateB.N. Agrawal and ;R.K. Srivastava, Advs.
DispositionAppeal dismissed
Excerpt:
.....of marriage in suit filed because of failure of other party to obey decree for restitution of conjugal rights - not illegal - decree for restitution of conjugal rights is passed by court and imposes obligation on respondent to go and live with other spouse and perform marital obligations - when this is not done - other party has right to apply for dissolution of marriage - period for filing suit for dissolution commences from date of passing of decree for restitution of conjugal rights. - - shefurther pleaded that she was ever readyand willing to go and live with her husband and it was he who had failed totake her with him. in a situation like this, it would be a rare case where any reconciliation between the parties could be brought about by a court where a petition for divorce..........district court in the present case was : wheher the respondent had no knowledge of the ex parte decree dated 19th may, 1976, passed against herfor restitution of conjugal rights if so,its effect ?4. on appraisal of the evidence on record, the district court has found that the appellant-wife did have knowledge of the passing of the decree of restitution of conjugal rights. this finding of the district court is based on two facts. firstly, that the wife was duly served with the notice of the earlier proceeding for restitution of conjugal rights but despite that, she did not contest the same and allowed it to be decreed ex parte; and did not apply for setting aside of that decree; and secondly, that a notice dated 31st august, 1976, was served by the husband on the wife, by registered.....
Judgment:

Deoki Nandan, J.

1. This is a wife's first appeal in a suit for divorce. The husband-respondent was the petitioner in the District Court. The ground on which the decree of divorce was claimed was that there was no restitution of conjugal rights between the parties for a period of one year and more, after passing of a decree for restitution of conjugal rights on 19th May, 1976, by the Court of District Judge, Jalaun at Oral.

2. In her defence, the appellant didnot deny the factum of the passing ofthe said decree of restitution of conjugalrights on 19th May, 1976, but she pleadedthat the decree was passed ex parteagainst her and she had no knowledge of it until the service of the summons of the present suit for divorce. Shefurther pleaded that she was ever readyand willing to go and live with her husband and it was he who had failed totake her with him.

3. The only substantial issue raised by the District Court in the present case was : Wheher the respondent had no knowledge of the ex parte decree dated 19th May, 1976, passed against herfor restitution of conjugal rights If so,its effect ?

4. On appraisal of the evidence on record, the District Court has found that the appellant-wife did have knowledge of the passing of the decree of restitution of conjugal rights. This finding of the district court is based on two facts. Firstly, that the wife was duly served with the notice of the earlier proceeding for restitution of conjugal rights but despite that, she did not contest the same and allowed it to be decreed ex parte; and did not apply for setting aside of that decree; and secondly, that a notice dated 31st August, 1976, was served by the husband on the wife, by registered post acknowledgment due, informing the wife of the passing of the decree of restitution of conjugal rights dated 19th May, 1976. and asking her to come and live with him within seven days of the receipt of that notice.

5. Postal acknowledgment due card and the post-office receipt have been produced to prove the service of the said notice dated 31st August, 1976. Against this evidence, there is only a bare denial of the wife in her statement on oath, of knowledge of the passing of the decree of restitution of conjugal rights and of having been served with the notice dated 31st August, 1976. The fact that the wife did not apply for setting aside of the ex parte decree for restitution of conjugal rights on any such ground as want of service of the summons of that suit, leads to the inference that she had knowledge of that suit and she deliberately chose not to contest the proceeding. In consequence, she must be presumed to have had due notice of the date of hearing of that suit and, if that is so, she can also be presumed to have the notice of the passing of the ex parte decree dated 19th May, 1976. Her bare denial is not sufficient to rebut the presumption, particularly, in view of the evidence of service of notice dated 31st August, 1976.

6. Learned counsel for the appellant, however, contended that the appellant having made it clear as the first thing in her written statement and in the suit, giving rise to the present appeal, that she was ready and willing to go with her husband as soon as she had knowledge of the decree, it cannot be said that there has been no restitution of conjugal rights on account of any fault on her part. If there has been no restitution of conjugal rights, the fault Is not hers, and the husband cannot beallowed to take advantage of the decree for restitution of conjugal rights as he is only trying to use the decree of restitution of conjugal rights as a stepping stone to divorce when no ground for divorce exists. Learned counsel for the appellant urged that it was the duty of the district court to have made all efforts to bring about a reconciliation between the parties and this not having been done by the district court, the decree for divorce suffers from a material illegality in the exercise of its jurisdiction by the district Court.

7. Proceeding on the assumption that the appellant must be deemed to have had knowledge of the passing of the decree of restitution of conjugal rights, and even on the footing of her own statement that she was ever willing to go and live with her husband, there is nothing from the side of the appellant-wife that she ever made any attempt to go to her, husband's place and live with him. a decree for restitution of conjugal rights is a command issued by the court which imposes an obligation on the respondent to the case in which the decree is passed, to go and live with the other spouse and perform the marital obligations. It is only when the obligation imposed by the decree is not complied with that any party to the proceeding can apply for divorce, and the only manner in which the decree could be executed is by attachment of the property and if she had no property, the decree could be executed in any other manner. In this view of the matter, it is the abligation imposed by the decree for restitution of conjugal rights which is the most material part of it and where the party bound by such a decree chooses not to perform his or her part of the obligation for a period of one year or upwards Section 13(1-A)(ii) of the Hindu Marriage Act gives either party a right to apply for dissolution of the marriage by a decree of divorce. In a situation like this, it would be a rare case where any reconciliation between the parties could be brought about by a court where a petition for divorce on such a ground is pending. The provisions of Section 23(ii) of the Hindu Marriage Act are not absolute. While imposing a duty on the court to make every endeavour to bring about reconciliation between the parties, a discretion is left to the court by the use of the qualifying phrase : 'in every case where it is possible to do consistentlywith the nature and circumstances of thecase'. The duty of the court is qualified and conditioned by this phrase. As seen above, in a proceeding for divorce on the ground prescribed by Section 13(1-A)(ii), possibility of reconciliation is extremely rare and I am unable to hold that the district court committed any illegality, in the nature and the circumstances of the present case, in not making an endeavour to bring about a reconciliation between the parties before proceeding to grant the decree of divorce.

8. Learned counsel for the appellant then contended that the period of one year prescribed by Section 13(1-A)(ii) should be deemed to commence from the date of knowledge of the decree and not from the date on which the decree for restitution of conjugal rights was passed. On the plain language of the provision of Section 13(1-A)(ii), it is clear that right to apply for divorce arises to the spouses under the said section, on the expiry of the period of one year or more : 'after passing of a decree for restitution of conjugal rights in a proceeding to which they were parties', A decree is said to be passed on the date on which the judgment is pronounced. Moreover, the right to apply for divorce on any such ground, as prescribed by Section 13(1-A)(ii), would become uncertain if any other date is taken to be the date of passing of the decree for the purposes of ascertaining the date of the completion of period of one year. Every person who is a party to a proceeding in which a decree is passed is presumed to know of the passing of the decree on the date on which the judgment is pronounced. Learned counsel for the appellant, however, relied on certain cases on Land Acquisition Act, such as Raja Harish Chandra Raj Singh v. The Deputy Land Acquisition Officer AIR 1961 SC 1500; and submitted that as in a case of an award under the Land Acquisition Act, the date of the decree should also be deemed to be the date of its communication. The basis of the decision of the Supreme Court in that case was that an award is in the nature of an offer and was ineffective unless communicated. A decree for restitution of conjugal rights is, on the other hand, passed by a district court in accordance with the procedure prescribed by the Code of Civil Procedure and the date on which a decree can be said to have been passed is ascertain-able in accordance with the provisions of the Code of Civil Procedure, irrespectiveof the question whether the party to the proceeding had, in fact, knowledge of the proceeding or of the decree passed therein.

9. No other point was pressed before me. The appeal fails and is dismissed. The decree of the district court dated 10th April, 1978, dissolving the respondent. Ram Sewak's marriage with the appellant Leelawati alias Bitti is confirmed. The parties shall bear their own costs throughout.


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