1. This is a Letters Patent appeal from a decision of Tare J. upholding the judgment and decree of the Additional District Judge, Narsimhapur, giving to the respondent Ramphal a decree for restitution of conjugal rights.
2. The plaintiff's case was that he was married to the appellant Alopbai on 13th March 1950; that after the consummation of marriage the tried to bring the appellant (No. 1) to his house but respondents Nos. 2 and 3 and appellant No. 2, who were close relatives of Alopbai and with whom she was staying, did not allow Alophai to come and live with him; that on 24th May 1956 while Alopbai was on her way to the house of Todalsingh (appellant No. 2) he (the plaintiff) met her and persuaded her to come and live with him; that accordingly she came to his house and lived with him for 26, days; that thereafter Todalsingh (appellant no. 2) and Gomitibai (respondent No. 2), her mother, took her away from his house after instituting criminal proceedings; and that since then they were preventing Alopbai from coming to his house. Alopbai (appellant No. 1) resisted the suit by pleading that the marriage had not been consummated and that the plaintiff had ill-treated her. She prayed that the marriage he declared a nullity or that she be given a decree for judicial separation.
3. The trial Judge decree the suit ex parte against Alopbai. He found that the marriage had been consummated and that the appellant (No. 1) had not led any evidence to support the allegations of cruelty and ill-treatment. As appellant No. 1 did not adduce any evidence the trial Judge accepted mechanically the plaintiff's statement that he had not ill-treated appellant No. 1. After making an unsuccessful effort for setting aside the ex parte decree, the appellants preferred an appeal in this court. The learned single Judge saw no ground for setting aside the ex parte decree. He came to the conclusion that as the appellants failed to appear and tender any evidence the decree passed by the learned trial Judge could not be set aside on any ground whatsoever'.
4. Having heard learned counsel for the parties we have formed the opinion that this case must be; remitted to the original court for a fresh trial. The appellants were present on all the dates of hearing up to 23rd February 1959, including those fixed when the record of the case was in this court in connection with a revision petition. It was on 16th March 1959 that they remained absent. The record of the suit had been received by then, but the trial Court instead on fixing a date for appearance of the parties after the receipt of the record proceeded to fix a date for evidence of the parties treating the appellants as ex parte. This order was wrong when obviously 16th March was not a date of hearing but only a date for further directions after the receipt of the record from the High Court. There was therefore good ground for setting aside the ex parte decree when the appellants presented an application for that purpose. The learned Single Judge thought that there was no ground for setting aside the ex parte decree when the appellant (No. 1) was asked to be present in Court on 1st May 1959 so as to enable the Court to bring about a reconciliation between the parties under Section 23(2) of the Hindu Marriage Act, 1955, and when she (appellant No. 1) failed to appear. The trial Judge, no doubt, ordered on 16th March 1959 that appellant No. 1 should be present in Court on 1st May 1959. But this direction or the failure of the appellant to appear in response to it has no hearing whatsoever on the question or the correctness of tho decision to proceed with the suit ex parte against the appellants and on the question of setting aside the ex parte decree. In holding that appellant No. 1 could not ask for the setting aside of the ex parte decree when she chose to remain absent despite the court's specific direction to be present on 1st May 1959 the learned Single Judge overlooked the fact that the inability of appellant to appear in Court was due to the apprehension felt by her that she would be forcibly taken away by her husband to his house from the Court or while on her way to the Court. The learned Single Judge himself found that the plaintiff had made attempts on several occasions (to take away appellant No. 1 by force.
5. Quite apart from the question whether there are any good grounds for setting aside the ex parte decree, the decree passed in this case for restitution of conjugal rights cannot be allowed 80 stand for the simple reason that both the learned Single Judge and the trial Judge have treated the suit as one which in its nature is in no way different from those ordinary undefended civil suits for possession of property or chattel. In the decision of suits under the Hindu Marriage Act, 1955, a human approach is essential. Whether a suit under the Hindu Marriage Act is defended or undefended a decree cannot be passed merely on the ground that the defendant is not opposing the suit or is ex parte. This is clear from the provisions of Sections 9(1) and 23(1) of the Act.
Section 9 is as follows:
'(1) When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.
2. Nothing shall be pleaded in answer to a petition for restitution of conjugal rights which, shall not be a ground for judicial separation or for nullity of marriage or for divorce.'
The second sub-section deals with the pleading which may be raised in answer to a petition for restitution of conjugal rights; but the first subsection specifies the conditions which must exist before a decree for restitution of conjugal rights can be granted.
Under Sub-section (1) of Section 9 the court must foe satisfied that the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, that the statements made by the petitioner under Section 9 are true, and that there are no legal grounds for refusing the application. Even when these conditions are satisfied, it is in the discretion of the court whether or not to pass a decree for restitution of conjugal rights. The Court is not relieved of the duty imposed on it by Section 9(1) when the defendant is absent. The discretion given in passing a decree for restitution of conjugal rights has to be exercised very cautiously and after deliberation. After all, it is a very serious matter to pass a decree for restitution of conjugal rights and force a party to return to his or her conjugat home against the party's will.
A decree for restitution of conjugal rights presupposes that the parties will make an endeavour to live together peacefully and happily. Where the circumstances of the case disclose that there is no possibility of the parties living together ever in a state of happiness, a decree for restitution of conjugal rights would be unjustified. In marital matters it is the attitude of the mind and the feelings that count and no decree of the Court can force the parties to live together. It is because of this that Section 23(2) provides that before granting any relief under the Act it shall be the duty of the Court in the first instance to make every endeavour to bring about a reconciliation between the parties. Section 23(1) also enjoins that in any proceedings under the Act, whether defended or not, if the Court is satisfied with regard to the points enumerated therein, then and then alone but not otherwise the Court shall decree the relief claimed.
6. Here, neither the learned Single Judge nor the trial Judge gave my consideration whatsoever to the matter mentioned in Sections 9(1) and 23(1) while decreeing the plaintiff's claim for restitution of conjugal rights. A decree was granted by the learned trial Judge and upheld by the learned Single Judge merely on the ground that the appellant did not lead any evidence is support of her allegation about cruelty and ill-treatment on the part of her husband. We are unable to uphold such a decree. Having regard both to the circumstances in which the appellants were declared to be ex parte in the suit and to the failure of the Courts below to give any consideration to the matters stated in Section 9(1) and 23(1), we are of the opinion that the case must be remitted to the original Court for a fresh 'trial'. It must be added that in the proceedings to be held the trial Judge will see that the appellant (No. 1) is given adequate protection to enable her to appear in Court and to give evidence, and he should deal sternly with anyone obstructing the appellant (No. 1) in the conduct of her defence and appearance.
7. The result is that the decision of the learned Single Judge and that of the Additional District Judge, Narsinhapur, are set aside with a direction that the suit shall be disposed of in accordance with law after giving to the parties as opportunity of leading evidence. The trial Court shall first fix a date for giving directions with regard to the production of evidence and shall intimate it to the paries in good time. Parties shall bear their own costs hitherto incurred.