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Mst. Godabai Vs. Narayan Zingaji - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtMadhya Pradesh High Court
Decided On
Case NumberFirst Appeal No. 156 of 1971
Judge
Reported inAIR1973MP4; 1972MPLJ1042
ActsHindu Marriage Act, 1955 - Sections 10(2)
AppellantMst. Godabai
RespondentNarayan Zingaji
Appellant AdvocateA.N. Mukerji, Adv.
Respondent AdvocateP.S. Khirwadkar, Adv.
DispositionAppeal dismissed
Excerpt:
- - , that the court should be satisfied of the truth of the statements made in the petition and that in its discretion it considers it just and reasonable to do so. the question whether the ground urged is sufficient to make the case fit for rescission of the decree comes after the court is satisfied about the truth of the averments made in the application......dismissing her application filed under section 10(2) of the act for rescission of the decree for judicial separation passed against her in an earlier proceeding (civil suit no. 11-a of 1969, decided on december 24, 1969).2. briefly stated, the facts are these. on an application made by the respondent, claiming judicial separation on the ground of cruelty under clause (b), sub-section (1) of section 10 of the act, a decree for judicial separation had been passed against the appellant on december 24. 1969. the application under section 10(2) of the act was filed on july 20, 1971, by the appellant. the only ground urged in support of the application was that the appellant was now repentant and she would not misbehave with the respondent as she did in the past, and that the marriage of.....
Judgment:

Verma, J.

1. This is an appeal by the wife according to Section 28 of the Hindu Marriage Act, 1955 (hereinafter called the Act), against the judgment and decree dated October 15, 1971, passed by the learned District Judge. Chhindwara, dismissing her application filed under Section 10(2) of the Act for rescission of the decree for judicial separation passed against her in an earlier proceeding (Civil Suit No. 11-A of 1969, decided on December 24, 1969).

2. Briefly stated, the facts are these. On an application made by the respondent, claiming judicial separation on the ground of cruelty under Clause (b), Sub-section (1) of Section 10 of the Act, a decree for judicial separation had been passed against the appellant on December 24. 1969. The application under Section 10(2) of the Act was filed on July 20, 1971, by the appellant. The only ground urged in support of the application was that the appellant was now repentant and she would not misbehave with the respondent as she did in the past, and that the marriage of their only daughter, who was about 13 years of age at the time of the application, was to be settled, which was not possible without getting the decree for judicial separation set aside, as it was presenting unsurmountable difficulties, The respondent opposed the application and denied the genuineness of the offer made by the appellant and controverted the other allegations. He offered to make all arrangements for the marriage of their daughter.

3. An issue was framed by the trial Court, whether it was a fit case for rescission of the decree for judicial separation. In spite of opportunity being given by the trial Court no evidence was led by either party. The trial Court dismissed the application on its finding that no ground for rescission of the decree under Sub-section (2) of Section 10 of the Act was made out It is against this decree that the present appeal has been prefers red by the wife.

4. Shri A. N. Mukerji, learned counsel for the appellant, has urged that prima facie the offer of the appellant to live again with the respondent peacefully was sufficient for the Court to rescind the decree under Section 10(2) of the Act and, therefore, it was not necessary to lead any further evidence. Under Sub-section (2) of Section 10, the main requirements are two, viz., that the Court should be satisfied of the truth of the statements made in the petition and that in its discretion it considers it just and reasonable to do so. The question whether the ground urged is sufficient to make the case fit for rescission of the decree comes after the Court is satisfied about the truth of the averments made in the application.

5. The power under Section 10(2) of the Hindu Marriage Act is extraordinary. It empowers the Court to rescind its own decree which it has rendered after due trial It follows that the extraordinary power can be exercised only for extraordinary or compelling reasons. The extraordinary power under Section 10(2) of the Act has for its basis the consistent policy of file law to make available to the parties every opportunity for reconcilation. The door is not closed even after the decree for judicial separation, until the marriage is dissolved by another decree. Where, notwithstanding a decree for judicial separation, the husband and the wife get over their differences and want to live together, the decree of judicial separation will not come in their way. That being the purpose and intent of Section 10(2), the power to rescind, though available, must be exercised with circumspection only to achieve this purpose.

6. If both the parties jointly approach the Court for rescission, the Court will find it easiest to grant relief. It will also not be difficult to grant rescission on the application of the spouse at whose instance the decree for judicial separation was passed. But where the application under Section 10(2) is made by the defendant and is resisted by the plaintiff, a very heavy burden lies on the applicant.

7. In this case an issue was framed by the trial Court requiring the parties to prove their case by adducing evidence, as it was not sufficient to have made those averments in the petition. No evidence having been led by the appellant, the burden was not discharged by her and it was not necessary for the respondent to have led any evidence. That apart, the only ground on which the application was filed and which is now urged in support of the appeal does not appear to be sufficient by itself to rescind the decree. At any rate, the appellant not having appeared at any stage to give an undertaking in the Court not to misbehave with the respondent which resulted in the decree for judicial separation, the learned District Judge was right in taking the view which he did. The learned District Judge made efforts for re-conciliation but he did not succeed. We do not see any reason to take a different view.

8. Accordingly we dismiss the appeal with costs.


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