1. This appeal arises out of a petition for divorce under Clause (ii) of sub-section (1-A) of S. 13 of the Hindu Marriage Act (hereinafter referred to as 'the Act'). The matrimonial Court had granted the decree of divorce and dissolved the marriage.
2. The short point that has been canvassed is that the requirement of sub-clause (ii) sub-section (1-A) of S. 13 had not been complied with. So the question is as to whether there had been no restitution of conjugal rights between the parties in compliance with the decree of restitution of conjugal rights obtained by the respondent--husband (hereinafter referred as 'the husband').
3. The proposition abovementioned is to be judged against the backdrop of the facts which can be stated thus :
4. The parties were joined in marriage bond on May 10, 1972. Sometime in Dec. 1975, the husband moved a petition u/s. 9 of the Act against the wife for restitution of conjugal rights. On Aug. 20, 1977 a decree in favour of husband and against the wife for restitution of conjugal rights was granted. Thereafter both the parties moved applications on Oct. 24, 1977 for execution of the decree. When the matter was taken up for consideration, both the parties made statements before the Court to the effect that they had decided to live together. On the basis of their statement on Oct. 18, 1978, the Executing Court made an order Ext. R-3, to the effect that the application filed by the parties stand fully satisfied in view of the statements made by the parties and their counsel before the Court. On that very day, i.e., Oct. 18, 1978, however, both the parties moved petitions before the Executing Court blaming each other for not agreeing to live together. The Court on that very day fixed Nov. 18, 1978 for consideration of these applications and necessary orders thereon. On Nov. 18, 1978 the Executive Court vide order Ext. A-6, dismissed the applications observing that the execution application had already been consigned to the record room as having been satisfied, therefore, these applications were not maintainable. The relevant provisions of Clause (ii) of sub-section (1-A) of S. 13 of the Act is in the following terms :--
'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 a proceeding to which they were parties.'
5. The position that emerges from the facts recapitulated above is that on Oct. 18, 1978, both husband and wife showed willingness to live together and on their statement, their execution applications were dismissed as having been fully satisfied. On that very day two fresh applications were moved blaming each other for not abiding by the statement made in Court. The question that would arise is as to whether from the mere statement of the parties in Court within the stipulated period that they were prepared to live together, the restitution of conjugal rights between them in terms of Clause (ii) of sub-section (1-A) of S. 13 would be presumed, thus disentitling them to maintain thereafter a petition under the said sub-clause (ii).
6. Mr. Jhanji, learned counsel for the appellant made a reference to M. P. Shreevastava v. Mrs. Veena, AIR 1966 Punj 506, in which it was held that the party against whom a decree of restitution of conjugal rights is passed can make an application to the Executing Court showing willingness to comply with the decree and that the executing Court, on the application of that spouse could order that there had been satisfaction of the decree.
7. Mr. R. L. Sarin, learned counsel for the husband on the other hand has canvassed that the executing Court has no power to enforce and execute a decree of restitution of conjugal rights by physically handing over the spouse against whom the decree is passed to the spouse in whose favour the said decree is passed. The executing Court could only resort to symbolic execution of the decree by attaching the property of the spouse in question and if within the period stipulated, as prescribed by O. 21, R. 32 of the Civil P. C., that spouse in response to the decree does not assume his or her conjugal duties then to sell the attached property and from the proceedings thereof make the payment to the other party to meet the cost of the execution application and to make over the balance to the party whose property it was.
8. According to the learned counsel a matrimonial decree is not satisfied till such time the parties resume their conjugal duties. Once the parties resume their conjugal duties, then a formal order of the executing Court is not necessary to that effect. Thus if the parties have not resumed their conjugal duties despite having shown willingness to do so in Court, then the satisfaction recorded by the Court of the decree on the basis of their willingness to resume conjugal duties would be of no consequence if in fact the parties had not resumed such duties, i.e., they do not start living together as husband and wife.
9. The learned counsel made a reference to a single Bench decision of this Court in Santosh Kumari v. Mohan Lal, 1980 Cur LJ (Civ) 240 : (AIR 1980 Punj) & Har 325) wherein M. P. Shreevastava's case (AIR 1966 Punj 506) (supra) relied upon on behalf of the appellant-wife had been considered and distinguished. Learned Judge after taking note of the decision of Full Bench of this Court reported in Smt. Bimla Devi v. Singh Raj, AIR 1977 Punj & Har 167, inter alia laid down two meaningful propositions, one that a decree for restitution of conjugal rights can be executed symbolically under O. 21, R. 32 of the C.P.C. and secondly that simply because a spouse refused to resume cohabitation in spite of execution application filed by the other spouse, it cannot be said that the decree for restitution of conjugal rights stood satisfied and the spouse refusing the resumption of cohabitation was not entitled to divorce.
10. However, neither the ratio of the two proposition laid down in Santosh Kumari's case (supra) by the learned single Judge, nor the ratio of M. P. Shreevastava's case squarely cover proposition that arises for determination in the present case, whether recording of satisfaction of the decree on the basis of the statements of the parties in Court be deemed to be restitution of conjugal rights in terms of Clause (ii) of sub-section (1-A) of S. 13 of the Act. The matter is truly res integra.
11. In my opinion in the peculiar facts of the present case, where the very next moment the parties appear to have changed their mind to live together and moved application before the Court blaming each other, restitution of conjugal rights cannot be inferred from the order of the executing Court recording satisfaction of the decree on the statement of the parties. I am also further of the view that what a party is to show in terms of Clause (ii) of sub-section (1-A) of Section 13 is that there has been no restitution of conjugal rights after the passing of the decree of the restitution of conjugal rights, and the other spouse is to satisfy the Court, if it is to succeed in denying the decree of divorce to the petitioning spouse that there has been restitution of conjugal rights after the passing of the decree of the conjugal rights and before the filing of the petition for divorce.
12. Restitution of conjugal rights does not tantamount to reconciliation between the parties. To show that there has been restitution of conjugal rights there should be physical living together of the parties in the place that they call matrimonial home. That, too, not under force or duress but as a result of willingness on the part of both the sides. For instance the parties in a given case agreed in Court that they were prepared to live together and the Court recorded satisfaction of the decree, but evidence is forthcoming on the record that in fact the parties did not live even for a moment together either before the satisfaction of the decree was recorded or thereafter till the filling of the petition for divorce, then in such a case even if there has been an order regarding satisfaction of decree on the basis of statements of the parties in Court to the effect that they were prepared to live together that would not tantamount to restitution of conjugal rights. It would, however, be a different matter if the statements were that they had already resumed cohabitation and were living together as husband and wife, as in that case any party going back on that statement would be estopped from so doing unless that party was to prove that the statement that he or she had made in Court was made under coercion and in fact the statement made was a false statement.
13. In the present case admittedly there had been no restitution of conjugal rights in fact. The appellant wife has sought to avoid the granting of decree of divorce to the husband merely on the strength of the order of the executing Court passed on the basis of their statements which are in the following terms:--
'Statement of the decree-holder (Major Bhagwant Singh--husband).
Stated that I am prepared to keep the applicant with me in village Chachrari.
Statement of Harbhajan Kaur--Respondent.
I state on oath that I am prepared to go with husband-decree-holder right from the Court.'
14. On the basis of the above statements the order of the trial Court is in the following terms :--
'In view of the statements made by the parties and their counsel the present execution stands dismissed as fully satisfied.'
15. As already observed such an order recording satisfaction by the executing Court is not enough to avoid the passing of the decree of divorce.
16. For the reasons aforementioned I find no merit in this appeal and dismiss the same with no orders as to costs.
17. Appeal dismissed.