B.S. Dhillon, J.
1. Atma Ram appellant was married to Kalawati respondent in the year 1964. They lived together as husband and wife for a few years and a daughter was born out of this wedlock on 11-12-1966. Thereafter, Atma Ram allegedly deserted Kala Wati without any reasonable cause. Reconciliation proceedings between the parties could not take place. Atma Ram filed a petition under S. 9 of the Hindu Marriage Act, 1955, (hereinafter referred to as the Act) for restitution of conjugal rights which was decreed by the trial Court on 8-7-71. Appeal against the same was dismissed by this Court on 4-1-1973. Letters Patent Appeal filed by the wife was dismissed vide order dated 10-4-1973, Atma Ram then filed petition for a decree of divorce on 11-5-1977. Divorce was sought on the ground that the decree for restitution of conjugal rights obtained by the husband had remained unsatisfied due to non-compliance by the wife for more than two years.
2. In the written statement filed by the wife it was admitted that final decree for restitution of conjugal rights exists. However, it was alleged that the appellant entered into another marriage with one Malagri alias Muglalri, daughter of Sahi Ram of village Harkawala, (Rajasthan) on 17-6-1974, and, therefore the decree for restitution for conjugal rights could not be complied with. It was asserted that the husband could not take advantage of his own wrong in view of the provisions of S. 23 of the Act and thus the petition for divorce was liable to be dismissed.
3. On the pleadings of the parties, the following issues were framed by the trial Court:--
1. Whether the petitioner has contracted second marriage with Malagri alies Muglalri daughter of Sahi Ram on 17-6-1974, and if so, what is its effect?
4. The learned trial Judge held that the factum of marriage between Atma Ram and Malagri was not proved. The petition was accepted and a decree for divorce was passed.
5. Kala Wati challenged the order of the trial Court in appeal. The learned single Judge vide his judgment dated 9-8-1979 reversed the findings of the trial Court on issue No. 1 and consequently dismissed the petition for divorce.
6. This Letters Patent Appeal was listed for hearing before a Division Bench consisting of S. S. Sandhawalia C. J. and S. S. Kang J. An argument having been raised by the learned counsel for Atma Ram that since there was no resumption of cohabitation between the parties for a period of more than two years of the passing of the decree for restitution of conjugal rights, the cause of action for divorce having arisen, the decree for divorce could not be refused on any ground whatsoever. The learned Judges constituting the Bench having felt that the question of law of general importance is likely to arise in many cases referred the case to a larger Bench. This is how this Letters Patent Appeal has been listed for hearing before us.
7. Shri Sarin, the learned counsel for the appellant, has challenged the findings of the learned single Judge on issue No. 1 and has vehemently contended on the basis of the averments made in the pleadings and keeping in view the evidence led by the parties on the record of this case, that the reversal of finding of fact recorded by the trial Court by the learned single Judge, is not sustainable in the eyes of law.
We find merit in this contention. We have very carefully gone through the pleadings and the evidence on the record and find that it is difficult to sustain the finding of the learned single Judge that Atma Ram had contracted second marriage with Smt. Malagri as averred in the written statement filed on behalf of the wife. There is no averment in the written statement that Smt. Malagri was ever seen residing with Atma Ram appellant as his wife. The only plea taken is that he contracted a second marriage with Smt. Malagri on 17-6-1974. It has further been pleaded in the written statement that the respondent filed a complaint under S. 494 of I.P.C. against Atma Ram and Smt. Malagri in pursuance of which Atma Ram and his second wife were being tried.
8. The evidence led by Kala Wati in support of the plea taken by her consisted of her own statement as R. W. 1 and that of Ram Kishan (R. W. 2) and Bir Bal (R. W. 3). It is clear from her statement that she did not herself witness the second marriage. She was informed by Birbal (R. W. 3) who is the maternal uncle of Kalawati, about the second marriage on the basis of which she filed a criminal complaint under S. 494 of I.P.C. She further deposed that she had seen Malagri with Atma Ram on 3 or 4 occasions during the hearing of the criminal case. According to her Smt. Malagri had a male child of 3 or 4 months' age. She further deposed that she was not prepared to live with Atma Ram because of the second marriage. However, if he turns out Malagri, she was prepared to live with him. Ram Kishan (R. W. 2) deposed that 31/2 years ago at about sunset time when he had gone to his field, he saw a marriage party at the house of Sahi Ram. Atma Ram was the bridegroom and Malagri daughter of Sahi Ram was married to Atma Ram in his presence. According to him four rounds around the fire were taken by the couple instead of seven rounds, according to the prevalent custom. He saw Malagri and Atma Ram on three or four occasions after the marriage. The witness also did not state that he had seen Atma Ram and Malagri living together. Bir Bal (R.W. 3) is the maternal uncle of Kala Wait. According to his statement, he belongs to village Churi Wala Dhanna in district Ferozepore. He happened to go to the house of Lachhman in village Harkewala where he saw the marriage at the house of Sahi Ram being performed in which Malagri was married to Atma Ram.
9. Atma Ram appeared as A. W 1 and deposed that he did not marry any other woman except Kala Wati. He denied that he had married Malagri as suggested. Surja Ram (A. W. 2) also corroborated the statement of Atma Ram and deposed that no other woman was living in the house of Atma Ram and that he had not performed second marriage with Smt. Malagri.
10. Section 7 of the Act provides that a Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto. It has further been provided that where such rites and ceremonies include the Saptapadi, that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire, the marriage becomes complete and binding when the seventh step is taken. Thus it is to be seen that with a view to prove the second marriage, it is necessary to plead as to the form of the marriage between the parties. In the present case, no averment was made with regard to the form of marriage. Until and unless the customary rites and ceremonies applicable to the parties are proved, the finding regarding the second marriage cannot be returned. Reference in this connection may be made to the decision of their Lordships of the Supreme Court in Smt. Priya Bala Ghosh v. Suresh Chandra Ghosh, AIR 1971 SC 1153. In the present case the pleadings and the evidence regarding the second marriage are wholly insufficient to warrant a finding of second marriage. As already observed, there is no pleading as regards the form of marriage. The statement of Kala Wati (R. W. 1) is of no consequence as she did not witness the marriage and she only received information from Bir Bal (R. W. 3). Ram Kishan (R. W. 2) did not disclose as to in what circumstances he happened to be present in the house of Sahi Ram. According to his testimony he had gone to his fields where he happened to see the marriage party. His statement that according to the custom, only four rounds and not seven rounds around the fire were necessary, is again of no help. He did not state that either of the parties was governed by such a custom. His statement that he had seen Atma Ram and Malagri on 3 or 4 occasions after the marriage is again a vague statement as he did not mention the time, place and date where they were seen together. He was suggested in cross-examination that he was having enmity with the father-in-law of Atma Ram's brother who is married in village Harkewala, that is, the village of this witness, though he denied the suggestion. This witness did not depose about the presence of Bir Bal (R. W.3) at the time of the marriage.
11. As regards Birbal (R. W. 3) he is the real maternal uncle of Kala Wati. He did not state that he saw Ram Kishan (R. W. 2) at the time of the marriage. This witness admittedly lives in a village in district Ferozepore in Punjab State and he did not give any reason as to how he happened to be present in village Harkewala at the psychological moment,. i.e., at the time of the marriage of Atma Ram with Smt. Malagri. He did not raise any protest at the time of the marriage. In fact his presence at the time and place of the marriage is highly unnatural and it was on the information given by this witness that Kala Wati lodged a criminal complaint under S. 494 of I.P.C. against Atma Ram and his alleged second wife Smt. Malagri.
12. The learned single Judge was also influenced by the fact that Kala Wati filed a complaint under S. 494 of I.P.C. immediately after having received the information. It has been brought to our notice by the learned counsel for Atma Ram that Atma Ram and Smt. Malagri have been acquitted of the charges under S. 494 of I.P.C. and a finding has been returned that the alleged second marriage performed by Atma Ram with Smt. Malagri was not proved.
13. The observation of the learned single Judge that Ram Kishan was not cross-examined in detail in our considered opinion is not of much help of the learned counsel for the respondent. Ram Kishan R. W. was suggested in cross-examination that he was inimical to the father-in-law of Devi Lal, brother of the appellant, Atma Ram, who is married in the village of this witness and, therefore, he was deposing falsely. This suggestion would be good enough to negative the argument that this witness was not cross-examined in detail. Normally, the Letters Patent Bench is reluctant to interfere with the finding of fact arrived at by the learned single Judge but since we find that the pleadings and the evidence adduced by the respondent is wholly insufficient to warrant a finding of second marriage, therefore, we are inclined to set aside the findings of the learned single Judge in this regard.
14. The learned counsel for the respondent then contended that even if the second marriage is not proved, since the learned single Judge also recorded a finding that at least Atma Ram and Smt. Malagri were living as husband and wife, therefore, the appellant has disentitled himself from getting a decree of divorce in view of the provisions of S. 23 of the Act. We are unable to agree with this contention. The learned single Judge accorded a categorical finding that the second marriage has been proved which finding is being reversed by us. The observations that Atma Ram and Smt. Malagri were living together as husband and wife, was merely a passing observation made. As already observed, there is nothing on the record either in the pleadings or in the evidence of any of the R. Ws. that any one of the witnesses saw Atma Ram and Smt. Malagri living together as husband and wife at any stage. Therefore, on the basis of the evidence on the record, it cannot be held that Atma Ram and Smt. Malagri were living together as husband and wife. This contention is, therefore, without any merit. We, therefore, reverse the findings of the learned single Judge on issue No. 1.
15. It may not be out of place to mention that the learned counsel for the appellant and also contended that even if Atma Ram had contracted a second marriage, still he would be entitled to a decree of divorce under S. 13(1A)(i) of the Act as the cohabitation between the two spouses did not take place within a period specified therein. The learned counsel contends that in such a situation, a provisions of S. 23 of the Act would not be attracted. It may be observed that a Full Bench of this Court in Smt. Bimla Devi v. Singh Raj, 1977 Cur LJ (Civ) 154 : (AIR 1977 Punj 167) to which I was a party, categorically held as follows (at p. 176) :
'It may, however, be observed that it may not be understood to have been held that the provisions of Section 13(1A) are not subject to the provisions of Section 23(1)(a). But, in fact, what we have held is that a defaulting spouse, who has suffered a decree for restitution of conjugal rights, cannot be held to be taking advantage of his or her own wrong merely because he or she has failed to comply with the decree of restitution of conjugal rights. Human ingenuity being what it is, it cannot be disputed that many cases may arise, where notwithstanding that a ground for divorce exists, there is may be something in the conduct of the petitioner which would be so reprehensible that the Court would deny to such a petitioner relief by way of divorce on the consideration that the petitioner was taking advantage of his or her own wrong.'
16. O. Chinnappa Reddy J. (as he then was) while agreeing with the conclusions arrived at by me, made further observations in a separate judgment. His Lordship held that it is not permissible to apply the provisions of S. 23(1)(a) on the concept of wrong-disability to proceedings in which relief is claimed under S. 13(1A) or S. 13B based as they are on the concept of a broken dawn marriage. It may be made clear that the observation referred to above made by his Lordship is a minority view by his Lordship is a minority view and, therefore, has no binding force.
17. Our attention has been drawn to a single Bench decision of mine in Smt. Ranjit Kaur v. Gurbax Singh, 1977 Hindu LR 395, wherein I made the following observations:--
'Without going into the merits and demerits of the arguments advanced by the learned counsel for the parties on this aspect of the case, it appears to me that the appeal is liable to me dismissed in view of the Full Bench decision of this Court in F. A. O. No 109-M of 1973 (Smt. Bimla Devi v. Singh Raj) dated 17th of December, 1975 : (AIR 1977 Punj 167). It has been held in that Full Bench decision that the provisions of Section 23(1)(a) of the Act cannot be invoked to refuse the relief under S. 13(1A)(ii) of the Act where cohabitation has not been resumed as between the parties to the marriage for statutory period after the passing of a decree for restitution of conjugal rights in proceedings in which they were parties. It has held that in a case covered under Section 13(1A)(ii) of the Act, either of the parties can apply for dissolution of marriage by a decree of divorce if it is able to show that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in proceedings in which they were parties. Once this condition is satisfied, the Court will not look into as to which was the party at fault for not resuming cohabitation.'
18. These observations of mine are in the context of the facts of the case decided. In the case the plea taken by the appellant was that the husband had failed to make himself available even though the appellant was ready to resume cohabitation. It was in the contaxt of this plea that the above mentioned observations were made that once the condition that there is no restitution of conjugal rights between the parties to the marriage within a period of one year or upwards after the passing of the decree for restitution of conjugal rights, was proved, the Court will not look into as to which was the party at fault for not resuming cohabitation. This judgment of mine nowhere lays down that the provisions of S. 23 of the Act will not be attracted in no case in proceedings for divorce. In the Full Bench decision in Smt. Bimla Devi's case (AIR 1977 Punj 167) (supra), it was categorically held that the provisions of S. 13(1A)are subject to the provisions of S. 23 of the Act.
19. It may not be out of place to mention that the view taken by the Full Bench in Smt. Bimla Devi's case (supra) finds affirmance by their Lordships of the Supreme Court in Dharmendra Kumar v. Mrs. Usha Kumar, 1977 Cur LJ (Civ) 493 : (AIR 1977 SC 2218). It was held therein that the grounds for granting relief under S. 13, including sub-section (1A). continue to be subject to the provisions of S. 23 of the Act. However, it was held that mere non-compliance with the decree of restitution of conjugal rights does not constitute a wrong within the meaning of S. 23(1)(a) of the Act. It would thus be seen that the view of the Full Bench in Smt. Devi's case (supra) has been fully affirmed by their Lordships of the Supreme Court in Dharmendra Kumar's case (supra).
20. It was contended by the learned counsel for the appellant that in case a spouse obtains a decree for restitution of conjugal rights and if the cohabitation between the two spouses does not take place within one thereafter, then even though the said spouse remarries before filing the petition for divorce, the provisions of S. 23 of the Act would not be attracted. This contention need not be gone into in this case as we have come to the conclusion that Atma Ram appellant did not contract a second marriage and thus he is entitled to a decree for divorce. This question, therefore, will be merely of academic discussion. While sitting in Full Bench it would be laying a wrong precedent to decide a question of law which does not arise in the case. The decision on a point, which does not arise in a case, will be merely in the form of obiter dicta and not a binding precedent. This question may, therefore, be gone into in some appropriate case.
21. For the reasons recorded above, this Letters Patent Appeal is accepted, the order of the learned single Judge is set aside and the petition for divorce is allowed with costs.
S.S. Sandhawalia, C.J.
22. I agree.
Prem Chand Jain, J.
23. I also agree.
24. Appeal allowed.