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Jasmel Singh Vs. Smt. Gurnam Kaur - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtPunjab and Haryana High Court
Decided On
Case NumberF.A.F.O. No. 7-M of 1972
Judge
Reported inAIR1975P& H225
ActsCode of Civil Procedure (CPC) , 1908 - Order 23, Rule 1(3); Hindu Marriage Act, 1955 - Sections 13 and 23(1)
AppellantJasmel Singh
RespondentSmt. Gurnam Kaur
Appellant Advocate B.S. Jawanda, Adv.
Respondent Advocate V.K. Jhanji, Adv.
DispositionAppeal dismissed
Cases ReferredM. P. Shreevastava v. Mrs. Veena
Excerpt:
.....be dismissed. --(1) has the respondent failed to comply with the decree of restitution of conjugal rights passed against the respondent and in favour of the petitioner? 6. the next contention of the counsel for the appellant is that the finding of the lower court that after the passing of the decree for restitution of conjugal rights, the respondent lived at the house of the appellant and the decree for restitution of conjugal rights was satisfied, is incorrect and is not based on any evidence. 6 of the written statement, the respondentpleaded that after the decision of the application under section 9 of the hindu marriage act, the appellant had made an application under section 13 of that act, but the same was withdrawn when she had gone to his house to live with him as his..........singh appellant filed an application under section 9 of the hindu marriage act for restitution of conjugal rights against her and a decree for restitution of coniugal rights was passed in his favour against gurnam kaur on october 1. 1959. she did not comply with this decree for a period of more than two years after the passing of that decree and jasmail singh filed an application under section 13 of the hindu marriage act for a decree of divorce against her on october 10, 1961, but this petition was withdrawn on may 11, 1962 on the assurance given by the respondent and her father that she would reside with him at his hou.se as his wife. however, thereafter she did not go to the house of the appellant and he then filed the present petition on january 14, 1970 under section 13 of the.....
Judgment:

Pritam Singh Pattar, J.

1. This is a first appeal filed by Jasmail Singh son of Gurdit Singh, resident of village Ramawala Nawan. Tehsil Moga, District Ferozepur against the order dated October 20, 1971 of the Additional District Judge, Lu-dhiana, whereby he dismissed his petition under Section 13 of the Hindu Marriase Act for dissolution of his marriaee by decree of divorce against his wife Shrimati Gurnam Kaur, respondent.

2. The facts of this case are that the marriage of Jasmail Singh appellant took place with Smt. Gurnam Kaur on May 15, 1955 according to Hindu rites in village Sawaddi, Tehsil Jagraon. District Ludhiana and thereafter thev both lived as husband and wife at the house of the appellant in village Ramawala, Tehsil Moga. From the loins of the appellant, the respondent gave birth to a girl on or about the year 1957 and her name is Har-bans Kaur. Some differences arose between the parties thereafter and it is aliened that the respondent went to village Sawaddi and took her daughter Harbans Kaur with her and in spite of repeated requests she did not return to his house, Jasmail Singh appellant filed an application under Section 9 of the Hindu Marriage Act for restitution of conjugal rights against her and a decree for restitution of coniugal rights was passed in his favour against Gurnam Kaur on October 1. 1959. She did not comply with this decree for a period of more than two years after the passing of that decree and Jasmail Singh filed an application under Section 13 of the Hindu Marriage Act for a decree of divorce against her on October 10, 1961, but this petition was withdrawn on May 11, 1962 on the assurance given by the respondent and her father that she would reside with him at his hou.se as his wife. However, thereafter she did not go to the house of the appellant and he then filed the present petition on January 14, 1970 under Section 13 of the Hindu Marriage Act for a decree of divorce.

3. Gurnam Kaur respondent contested this application. She admitted the passing of the decree for restitution of coniugal rights against her and also the withdrawal of the previous petition for a decree of divorce. However, she pleaded that she was always ready and willing to go to the house of the petitioner and to live with him as his wife but he always avoided her company and had been harassing her, that after the passing of the decree she went to his house and resided with him and that the decree was satisfied and this application may, therefore, be dismissed.

4. On these pleadings of the par-ties, the following issues were framed by the lower Court:--

(1) Has the respondent failed to comply with the decree of restitution of conjugal rights passed against the respondent and in favour of the petitioner?

(2) Relief.

The learned Additional District Judge held that after the passing of the decree for restitution of conjugal rights, the respondent went to the house of the appellant and resided for some time with him as his wife and thus the decree was complied with and the present petition was not maintainable. It was also held that this petition was barred under Order 23. Rule 1, Civil Procedure Code and that the present petition was made after unnecessary and improper delay and according to Section 23(1)(d) of the Hindu Marriage Act, he is not entitled to any relief. As a result, the petition filed by Jasmali Singh was dismissed with costs.

Feeling aggrieved, Jasmail Sineh filed the present appeal in this Court.

5. The first contention of Mr. B. S. Jowanda, the learned counsel for the appellant is that the decision of the lower Court that this application is barred under Order 23. Rule 1, sub-rule (3) of the Code of Civil Procedure is factually wrong and incorrect and it should be set aside. It is admitted that the appellant had previously made an application under Section 13 of the Hindu Marriage Act for a decree of divorce on October 10. 1961 against the respondent and this petition was withdrawn on May 11, 1962 on the assurance given by the respondent and her father that she would live with him at his house as his wife. This fact was not denied in the written statement. The respondent did not plead that the previous petition was withdrawn without obtaining the permission of the Court to file the fresh petition on the same cause of action. The appellant made an application in this Court under Order 41, Rule 27. Civil Procedure Code, to permit him to produce additional evidence to prove that the previous petition was withdrawn with permission to bring a fresh petition on the same cause of action and along with this he has attached the copy of the order of the Sub-Judge. Moga dated May 11. 1962 permitting him to file a fresh petition. Since there was neither any pleading nor any issue on this point, therefore, the appellant could not lead any evidence on this point. It appears that the learned Additional District Judge suo motu took up this objection The decision on this point is not necessary, because it was frankly conceded by Mr. Jhanji, the learned counsel for the respondent that the previous petition was withdrawn by the appellant and he was granted permission to file a fresh petition on the same cause of action. Therefore, the decision of the Additional District Judge that this petition is barred under Order 23, Rule 1, Sub-rule (3), Civil P. C., is incorrect and is set aside.

6. The next contention of the counsel for the appellant is that the finding of the lower Court that after the passing of the decree for restitution of conjugal rights, the respondent lived at the house of the appellant and the decree for restitution of conjugal rights was satisfied, is incorrect and is not based on any evidence. The decree of restitution of conjugal rights was passed on October 1, 1959. The first application for decree of divorce under Section 13 of the Act was made by the appellant on October 10, 1961, but a compromise was arrived at between the parties, according to which the respondent agreed to live at his house as his wife and he withdrew that application on May 11, 1962. The present petition under Section 13 of the Act was filed on January 14, 1970. In para No. 6 of the written statement, the respondentpleaded that after the decision of the application under Section 9 of the Hindu Marriage Act, the appellant had made an application under Section 13 of that Act, but the same was withdrawn when she had gone to his house to live with him as his wife and thus the decree for restitution of conjugal rights was satisfied. To prove this allegation, the respondent did not produce any oral and documentry evidence excepting her own statement as R. W. 1. She testified that she went to live with the appellant four years after the passing of the decree for restitution of conjugal rights and that after the compromise was arrived at in the Court she went to the appellant's house from Moga along with her brother Kartara besides Major Singh Sar-panch. She resided at the house of the appellant for about one month as his wife and thereafter he gave her slaps and fist blows and turned her out of his house and since then she was residing at the house of her parents along with her daughter Harbans Kaur. As against this, in paras Nos. 5, 6 and 7 of the petition, the appellant alleged that during the pendency of the first application m:ide by him under Section 13 of the Act, a compromise was arrived at between the parties and on the assurance given by the respondent and her father that she would reside at his house as his wife he withdrew that application, but thereafter she never went to his house to reside. Similar is the statement of Jasmail Singh appellant as P. W. 4. He denied the suggestion put to him in cross-examination that the respondent had gone to live with him at his house at the intervention of the Panchayat. He, however, stated that after the withdrawal of the petition under Section 13 of the Act, he took panchayats to the house of the parents of the respondent, but she refused to come back to his house. If in pursuance of the admitted compromise arrived at between the parties, the respondent did not go to the house of the appellant to live as bis wife, he should have given her a notice for contravening the terms of the oral compromise, but this was not done by him for reasons best known to him. Further, after May 11, 1962 he remained silent for 7 years and 8 months and did not file any petition for a decree of divorce, which he could do at any time after May 11, 1962. All these facts lend support to the allegations of the respondent that after the withdrawal of the previous application she went to the house of the appellant to live as his wife and resided there for one month and thereafter he turned her out of his house after giving beating to her.

7. To support his allegations that he went to the house of The parents of the respondent along with Panchayats, the appellant examined three witnesses. Gurdit Singh P. W. 3, who is the father of the appellant stated that he along with his son Jasmail Singh, Arjan Singh, Bachittar Singh and Mangal Singh went to the house of the par- ents of the respondent and requested her to go to the house of the appellant and they told them that they had not yet made up their mind and they would let them know in due course. All of them again went to their house after about a month, when the respondent declined to go to his hou.se and never came to the house of the appellant- Similar are the statements of Arjan Singh P. W. 1 and Bachittar Singh P. W. 2. As against this, the respondent as R. W. 1 denied that the appellant came to her parents' house along with a Panchayat.

8. In Major Singh v. Sukhdev Kaur, 1963 Cur LJ 453, it was held that if the decree for restitution of conjugal rights was complied with within two years of the passing ot the decree, then a decree for dissolution of marriage under Section 13(1)(ix) of the Hindu Marriage Act cannot be passed. In the instant case, it is not established that within two years of the passing of the decree for restitution of conjugal rights on October 1, 1959, the respondent had gone to the house of the appellant to live as his wife. It is however, established that in pursuance of the compromise arrived at between the parties in the previous application made under Section 13 of the Act, the respondent agreed to live at the house of the appellant as his wife and thereafter she did go to his house and lived with him for about one month and thereafter she was turned out of his house by him. This was sufficient compliance with the decree for restitution of conjugal rights. Thus, the decree for restitution of conjugal rights was satisfied and no relief can be granted to the appellant in the present application.

9. The learned counsel for the appellant then contended that it was not pleaded in the written statement that this application had been made after inordinate delay and, therefore, the decision of the lower Court on this point cannot be sustained and may be set aside. He further contended that the relief in this case cannot be denied to the appellant on the mere ground of delay and the decision of the lower Court on this point is incorrect and it may be set aside. In support of his latter contention, reliance was placed on Smt. Surinder Kaur v. Gurdeep Singh, AIR 1973 Punj and Har, 134 wherein it was held that where the delay in filing petition under Section 9 of the Hindu Marriage Act is caused because of efforts made to secure the society of the other spouse, relief cannot be refused on ground of delay. The facts of this case were that the parties were married on February 10, 1961 at Ludhiana and thereafter they lived together as husband and wife at Chandigarh, where the husband was employed. The wife was employed as teacheress in the Khalsa Model School, Chandigarh and she worked there as J. B. T. teacher from May 2, 1963 to May 22, 1963. The wife left Chandigarh on December 31, 1963 alleging that she would be going toLudhiana to see her mother. Thereafter she did not return to his house. She joined as teacheress in Kalgidhar Khalsa Higher Secondary School, Ludhiana where she was previously employed as a teacheress. The husband filed an application for restitution of conjugal rights on November 11, 1964, but this petition was dismissed in the year 1965 because of a compromise arrived at between the parties and the assurance held put by her relatives that she would be returning to her house. In the years 1966, 1967 and 1968 he made efforts through her relations to secure her society, but did not succeed. Thereafter, he filed the petition under Section 9 of the Act. The facts of this case are clearly distinguishable and this case has no application to the present case. As mentioned above, in the instant case decree for restitution of conjugal rights was passed on October 1, 1959 and the petition under Section 13 of the Act was filed on June 10, 1961, but it was withdrawn on account of the compromise between the parties on May 11, 1962. The present application was filed on January 14, 1970, i. e., 7 years and 8 months after the with-drawal of the first application and there was clearly unnecessary and inordinate delay in filing the petition and the case is covered by Section 23 of the Act. Section 23(1) Clause (d) of the Hindu Marriage Act reads as follows :

'23. (1) In any proceeding under this Act, whether defended or not, if the court is satisfied that-

(a) .....

(b) .....

(c) .....

(d) there has not been any unnecessary or improper delay in instituting the proceeding, and

(e) .....

then, and in such a case, but not otherwise, the Court shall decree such relief accordingly.'

This Section 23 lays down the circumstances in which alone the Court can decree the relief claimed. The Court is required to take into consideration all the circumstances mentioned in Section 23 of the Act, such as, unnecessary or improper delay in presenting the petition etc. even though these grounds are not mentioned in the written statement. If there is unnecessary or improper delay in filing the petition under the Act, then it is liable to be dismissed on this ground; vide Gurcharan Singh v. Smt. Waryam Kaur, AIR 1960 Punj 422 and Teja Singh v. Sarjit Kaur, AIR 1962 Punj 195.

10. It may be noted that from the loins of the appellant, the respondent gave birth to a girl prior to the year 1959 and she is living with her at the house of her parents for the last about 15 years. No maintenance allowance has been paid by the appellant either to the respondent or to his daughter except under orders of the Court passed under Section 24 of the Act during the pendency of these proceedings. The girl has now become of marriageable age. After the withdrawal on May 11, 1962 of his previous application under Section 13 of the Act, he kept silent for 7 years and 8 months. It is well settled law that the Court is not to be used as a place to which a party to a marriage could come for redress whenever it suited him or her, having meanwhile held the weapon of redress over the head of the other party to the marriage. The policy of the law is not to encourage utilization of a decree for restitution of conjugal rights for mala fide purpose; vide M. P. Shreevastava v. Mrs. Veena, AIR 1965 Punj 54. In this case, the delay of 7 years and 8 months after May 11, 1962 is highly improper and inordinate and, therefore, the appellant is not entitled to any relief. The decision of the lower Court rejecting his petition on the ground of delay is correct and is affirmed.

No other point was urged. There is no force in this appeal and the same is dismissed. There will be order as to costs.


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