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Smt. Krishna Devi Vs. Additional Civil Judge, Bijnor and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ Petn. No. 6273 of 1984
Judge
Reported inAIR1985All131
ActsHindu Marriage Act, 1955 - Sections 9, 13 and 13A; Constitution of India - Article 226; Code of Civil Procedure (CPC) , 1908 - Order 6, Rule 2 - Order 7, Rule 7
AppellantSmt. Krishna Devi
RespondentAdditional Civil Judge, Bijnor and anr.
Appellant AdvocateR.H. Zaidi, Adv.
Respondent AdvocateP.N. Saxena, Adv.
DispositionPetition dismissed
Excerpt:
.....code of civil procedure, 1908 and article 226 of constitution of india - held, the alternative relief of divorce could be prayed for in a petition under section 9 as the procedure to be followed in such cases are under the code of civil procedure, 1908 - does not prohibit alternative relief - interlocutory order not a final order - article 226 of constitution not be entertained against an interlocutory order. - - the petitioner filed objection before the additional civil judge that in the petition, both the reliefs for restitution of conjugal rights as well as relief for divorce cannot be made, inasmuch as, the same are contradictory to each other. 3. i have heard learned counsel of the parties and have perused the order as well as have looked into the relevant sections of the..........under : --'13-a. in any proceeding under this act, on a petition for dissolution of marriage by adecree of divorce, except on so far as the petition is founded on the grounds mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of section 13, the court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation.'4. the scheme of the above section is that during the proceedings under section 13 of the act and except on the grounds mentioned in the section, if the court considers it just having regard to circumstances of the case, it may pass a decree for judicial separation, instead a decree for divorce. there is no bar in any of the provisions of the act not to seek alternative reliefs and no general.....
Judgment:
ORDER

K.C. Dhuliya, J.

1. By means of this Writ Petition, the petitioner has sought a prayer for quashing the order Dt. 1st May, 1984 (Annexure-III to the writ petition), passed by Addl. Civil Judge, Bijnor, in Matrimonial Suit No. 213 of 1982.

2. The facts in brief are that the parties were married according to Hindu religious rites on 13th Feb. 1977. A petition under Section 9 Hindu Marriage Act (in short the Act) was filed on 28th Sept. 1982 by the husband, Dr. Susheel Kumar Sharma (Respondent 2). It is alleged in the petition that the petitioner, Smt. Krishna Devi, left her home on 29th July, 1977, without any reason and since then she is living at the residence of her parents. Respondent 2. who has filed the Matrimonial Suit before the Trial Court, has stated that he has made all the efforts to bring her back to his house, but was not successful. In the petition for restoration of conjugal rights no impalatable allegations are made against the petitioner by the respondent. The petitioner, so far did not file any written statement. The conduct of both the parties, till this day, does not seem to be such, which may create an obstacle on the way of reconciliation. The petitioner filed objection before the Additional Civil Judge that in the petition, both the reliefs for restitution of conjugal rights as well as relief for divorce cannot be made, inasmuch as, the same are contradictory to each other. This objection of the petitioner was rejected by the Civil Judge and hence this petition.

3. I have heard learned counsel of the parties and have perused the order as well as have looked into the relevant sections of the Act. Learned counsel for the petitioner, Shri R.M. Zaidi, has vehemently argued that both the reliefs cannot be sought on the basis of the petition that has been filed and also since both the reliefs cannot be reconciled and are contrary to each other, the petition is not maintainable in the shape and form, in which it is filed. In order to substantiate his argument he has drawn my attention to Section 23-A of the Act, wherein it is specifically mentioned that the respondent in any of such petitions under the Act may oppose the relief on any of the grounds, viz., adultery, cruelty or desertion and such counter-claim, if made by the respondent, shall be treated as a petition on his or her behalf. He stated that such grounds are available to the respondents, but not for the petitioner. I have looked into the relevant provisions of the Act. Shri Zaidi also placed reliance on Section 13-A of the Act which is being reproduced as under : --

'13-A. In any proceeding under this Act, on a petition for dissolution of marriage by adecree of divorce, except on so far as the petition is founded on the grounds mentioned in clauses (ii), (vi) and (vii) of Sub-section (1) of Section 13, the court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation.'

4. The scheme of the above section is that during the proceedings under Section 13 of the Act and except on the grounds mentioned in the section, if the Court considers it just having regard to circumstances of the case, it may pass a decree for judicial separation, instead a decree for divorce. There is no bar in any of the provisions of the Act not to seek alternative reliefs and no general discretion is vested in the Court to withhold relief. It is true that the Court by the same decree cannot give both the reliefs.

5. Learned counsel for the petitioner has contended that the scheme of Section 13-A only speaks about the judicial separation and not for restoration of conjugal rights.

6. I do not agree with this argument advanced by Shri Zaidi. The scheme of Section 13A is to give some more opportunity to the parties for reconciliation so that within a particular period of time, if they resolve their differences they may be able to reunite, but the purpose of Section 9 is entirely different. A petition under Section 9 is for restoration of conjugal rights, such petition is filed only with good intentions, and as it is clear from the petition filed by the respondent, he has not made any allegation against the petitioner, which may amount to be harsh or denigrating her status or position in society. However, he has also stated in a simple way that since 20th July, 1977 the petitioner is not living with him. This averment made in the petition is in conformity with Sub-section (ib) of Section 13 of the Act which is being reproduced as under : --

'13. Divorce (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife^ be dissolved by a decree of divorce on the ground that the other party--.

(i)&(ia)..........

(ib) has deserted the petitioner for a continuous period of not less than two yearsimmediately preceding the presentation of the petition; or'

7. I do not think that alternative relief as has been sought by the opposite party in the writ petition cannot be made in the petition, filed under Section 9 of the Act. The procedures that are to be followed in Such cases are under the Civil P.C

8. Shri Saxena has drawn my attention to a Supreme Court case, Firm Shri Nivas Ram Kumar v. Mahabir Prasad AIR 1951 SC 177. It is true that the facts of that case are entirely different than the present case, but one thing is very clear that Civil P.C. does not prohibit alternative relief. The reliefs may be different or conflicting with each other, but in case of conflicting reliefs only one relief is to be granted by the Court, in case the suit is to be decreed. The principle laid down by the Supreme Court in that case is as follows :--

'A plaintiff may rely upon different rights alternatively and there is nothing in the C.P.C. to prevant a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative. Ordinarily, the Court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet. But when the alternative case, which the plaintiff could have made, was not only admitted by the defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the casewhich the defendant himself makes.'

9. So far written statement has not been filed by the petitioner. Much will depend on the stand that she takes in the petition. In case she admits the facts stated in para 8 of the petition that she is not living with opposite party since 20th July, 1977 at her own volition, that admission will be amply covered by Sub-section (ib) of Section 13 for giving second relief to the opposite party (petitioner). However, I hope that the parties belong to respectable families and they are not in fighting mood against each other.

10. In view of the above discussion I do not think it is proper for me to interfere in the impugned order. Apart from this the impugned order is an interlocutory order and is not afinal order. It is my firm view that the petition under Article 226 of the Constitution must not be entertained against an interlocutory order.

11. Before I part with this case I want to make it clear, keeping in view the earlier orders of this Court, directing the parties to be present before this Court for reconciliation, but for reason or the other, they could not be present in the Court, and I do not think it worthwhile to adjourn the case for that purpose, more so, the present proceedings are under Article 226 of the Constitution. In fact such duty is cast upon the Trial Court, as is contemplated under Section 23(2) of the Act. It has been stated at the Bar that once the Trial Court had made an endeavour to bring about reconciliation, but the same resulted into failure. Let the Trial Court make another effort and allow the parties to remain together for some time, free from the influences of relations. The petitioner Smt. Krishna Devi should stoop to conquer the respondent, Dr. Sharma, her husband and the latter should shed all his pride and prejudices and accept her warmly. There seems to be long communication gap between the two and once it is filled the snapped relation between the parties would be repaired. The Trial Court will decide this case expeditiously within a period of six months.

12. I, therefore, dismiss this petition. Cost onparties.


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