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Mohinder Kaur Vs. Rajinder Singh Juneja - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtDelhi High Court
Decided On
Case NumberFirst Appeal No. 222 of 1978
Judge
Reported in18(1980)DLT27
ActsHindu Marriage Act, 1955 - Sections 28
AppellantMohinder Kaur
RespondentRajinder Singh Juneja
Cases ReferredSee Mt. Sarjo v. Enait and
Excerpt:
(i) family - divorce - section 13 (1) (1a) of hindu marriage act, 1955 - wife's appeal against order of additional district judge - judge granted decree of divorce under section 13 (1) (1a) on ground of cruelty - appellant claiming that she was also entitled to decree of nullity - appeal is not maintainable since appellant has been given what was asked for - now after obtaining decree of divorce appellant cannot turn around and appeal insist upon further grant of decree of nullity - appellant and respondent no more husband and wife - appeal failed on preliminary point only. (ii) amendment - appellant succeeded in obtaining decree of divorce after full trial - amendment at present stage would cause injury to husband which can be not compensated - having made election of her own choice can..........a decree of divorce on the ground of cruelty.'(4) after a protracted trial the judge granted the wife a decree of divorce under section 13(l)(l a) of the act on the ground of cruelty. the other two reliefs he declined. now the wife has brought this appeal from that part of the order which refuses her the decree of nullity in substance she claims that she was entitled to a decree of nullity and the learned judge ought to have so held. (5) on evidence the judge found that the wife was treated with cruelty after the solemnisation of marriage. he, thereforee, dissolved the marriage on this ground. on the claim of nullity he found that the husband did not have a spouse living at the time of his marriage with the appellant. a declaratory suit was brought in the court of the subordinate judge.....
Judgment:

Avadh Behari Rohatgi, J.

(1) This is a wife's appeal against the order of the Additional District Judge, dated 21st September, 1978.

(2) The parties were married on November 10, 1973. Soon there were disputes and quarrels. The wife alleges that when she went to her husband's house she came to know that the husband had a living spouse Smt. Hardeep Kaur by name who was married to him in November 1966.

(3) On May 17, 1974 the wife filed a petition (which was subsequently amended) under Sections 11, 12, 13(l)(l A.) of the Hindu Marriage Act as amended by the Marriage Laws (Amendment Act) 1976 (the Act). In the petition three alternative prayers were made in these terms :

'THATthe petitioner, thereforee, prays as under : (a) that the marriage solemnised between the petitioner and the respondent (Sardar Rajinder Singh) being null and void respondent already having a living spouse, may be so declared by this Hon'ble Court by a decree of nullity; (b) that the marriage between the petitioner and the respondent (S. Rajinder Singh) being voidable on the ground of fraud may be annulled by this Hon'ble Court by a decree of nullity; (e) that the marriage between the petitioner and the respondent (S. Rajinder Singh) be dissolved by a decree of divorce on the ground of cruelty.'

(4) After a protracted trial the judge granted the wife a decree of divorce under Section 13(l)(l A) of the Act on the ground of cruelty. The other two reliefs he declined. Now the wife has brought this appeal from that part of the order which refuses her the decree of nullity in substance she claims that she was entitled to a decree of nullity and the learned judge ought to have so held.

(5) On evidence the judge found that the wife was treated with cruelty after the solemnisation of marriage. He, thereforee, dissolved the marriage on this ground. On the claim of nullity he found that the husband did not have a spouse living at the time of his marriage with the appellant. A declaratory suit was brought in the court of the subordinate judge at Amritsar. The court decreed the suit holding that the marriage of Hardeep Kaur with the respondent stood dissolved as from 23rd March 1972. The Judge in this case, thereforee, formed the view that the husband was entitled to .remarry and his marriage with the appellant was not a nullity, as the previous marriage was not subsisting by reason of the declaratory decree of Amritsar Court. Consequently he refused to grant the decree of nullity.

(6) At the very threshold a preliminary objection has been raised. It is said that the appeal is not maintainable. The wife made three prayers in the alternative. In prayers (a) & (b) she asked for a decree of nullity. In prayer (e) she sought a decree of divorce. The decree of divorce has been given to her. What grievance can she have now And no one can appeal unless he or she is aggrieved. The choice of reliefs is always with the plaintiff. He is the dominus litus. He is the master of litigation. He can ask for more than one relief. He can ask for independent relief or reliefs in the alternative. In alternative reliefs if the court trying the suit grants him one relief then it follows that he has got what he sought. He cannot agitate the matter further in the appellate court and ask for the relief denied to him which as already stated he only asked in the alternative. 'Alternative' is an expression which indicates a choice of the person and if that choice is once exercised by him, he cannot afterwards blow hot and cold and also ask for the other alternative relief. To allow him to agitate the matter even though he has exercised the choice of asking for reliefs in the alternative is to encourge litigation. In my opinion the wife is seeking to approbate which she cannot do.

(7) In Duxters Limited v. Hill Crest Oil Company (Brud.ford) Limited, (1926) 1. K. B. 348 . Scrutton L.J. said :

'SOin my opinion, you cannot take the benefit to a judgment as being good and then appeal against it as being bad.' and: 'ITstartles me to hear it argued that a person can say the judgment is wrong and at the same time accept the payment under the judgment as being right.'

(8) This illustrates the rule that a party cannot approbate and reprobate at the same time. These propositions are so well known that no possible exception can be taken to them.

(9) Sir D. F. Mulla says, 'where however the plaintiff had sued for alternative reliefs and has been granted relief in respect of one such relief a question as to whether he can appeal against the decree, which has refused the other relief, the trend of decisions is that he cannot appeal.' (Civil Procedure Code. 13th Edition/p. 421 and 422.

(10) Chitaley and Rao, 'where the plaintiff asks for one of two alternative reliefs and is granted one, he cannot in appeal contend that he should be given the other relief.' (Code of Civil Procedure, 9th Edition Vol. I Ii p. 40).

(11) Reajuddin Patwari and other v. Syed AbdulJabbar, : AIR1924Cal445 , Somasundaram Chettiar v.Chidambaram Chettiar, : AIR1951Mad282 . and Sakku Sati Ammal v. Babu Reddiar and, other. : AIR1977Mad223 On this point may be referred to with advantage.

(12) I thereforee, come to the conclusion that the wife has debarred herself from appealing against the judgment. She having obtained a decree of divorce cannot turn round and appeal insisting that she be further granted a decree of nullity. The court has given her what she asked for. Reasons and justice demand that she would be estopped from claiming a decree of nullity. In this view of the matter it is necessary to pronounce upon the validity of the decree which declared that the respondent and Hardeep Kaur were no longer husband and wife. The appeal falls on the preliminary point.

(13) The wife made an application under Order 6, Rule 17 C. P. C. that she may be allowed to amend the original petition so as to claim a decree of nullity in addition to the decree of divorce. I cannot allow this application at this stage. The wife has succeeded after a full trial of the suit in obtaining a decree of dissolution of marriage. She should be satisfied with it. She cannot be now allowed to ventilate her grievance on the other ground that the husband had another wife Hardeep Kaur and he was not entitled to take her, the appellant, as his wife. Amendment at this stage will change the nature of the case. It will mean a change of ...The husband has not appealed. He seems to be satisfied with the decree of divorce passed against him. But if the claim for nullity is allowed to beraised at this stage, it will be doing injury to the husband such as cannot be compensated in costs. Having made her election the wife cannot be allowed to take a different and inconsistent position now. The door of choice was open to her. She chose to go by one way. Now she cannot be allowed to turn round and say that she may be permitted to adopt a different course. The doctrine of estoppel by pleading can properly be pressed against her. 'Election', approbation and reprobation, 'waiver', and like are essentially neither more nor less than examples, applications, corrollaries or of shoots, of that great central doctrine of estoppel by representation which in its widest comprehension and truest sense, is a complete answer. A prayer for alternative relief cannot be converted into one for additional relief. See Mt. Sarjo v. Enait and others, A. I. R. 1924 All. 271. I, thereforee, dismiss the application for amendment.

(14) In the course of the suit the wife also made an application under Section 21 of the Hindu Marriage Act claiming the return of dowry worth Rs. 17,950. The judge found that at the time the wife left the husband's house on 4th February 1974, she took away with her all the ornaments and clothes except a bed and a sofa set which she left behind. Now the wife challenges in appeal this finding also.

(15) On 4th February 1974, the wife gave a receipt duly signed setting out the list of articles-clothes and jewellery-which she was taking with her when she left the matrimonial home. On the basis of this receipt which the judge held to be genuine he came to the conclusion that the wife's claim for return of articles was false and that except a bed and a sofa set she had left behind nothing. The following is a summary of the judge's findings on this part of the case :

1.That the receipt (R 1) dated 14th February, 1974 is 'genuine and binding' and its contents are correct.

2.That the wife was not forced to sign the receipt, she of her own volition signed it when she left the husband's home.

3.In the notice dated 16th April, 1974 sent by the wife the receipt is admitted. The notice says that she was asked 'to note certain clothes which she was to bring with her when she came to her father's house'. This averment proves that the wife's case that her signatures were obtained on a blank paper is untrue.

4.The petition does not mention that ablank paper was got signed forcibly. thereforee, the wife's allegation is not true.

5.The wife's father is a lawyer. He would not have failed to mention force and fraud in the notice if the wife had been compelled to sign a blank paper.

6.On the financial position of wife's father his conclusion was that he was not 'capable of spending as much amount as he has claimed to have spent on the marriage of this daughter.'

7.The wife's father has six sons and four daughters. He was not in such affluent circumstances as to give a dowry of Rs. 17,950 as stated in the petition.

8.That the professional income of the wife's father was only a few hundred rupees per month and in view of the large family he had to support he was not in. a position to spend as he had stated in his testimony.

9.That in the petition the claim was for Rs. 17,950. In the notice dated 16th April 1974, the claim was 'inflated to Rs. 39,396.00 '. This shows that the claim is bogus.

10.That the statement of wife's father was 'evasive'.

(16) On the evidence adduced before the judge his conclusion was that the wife had failed to prove her case for the return of dowry under Section of the Act, that she had taken with her clothes and ornaments set out in the receipt, and that the only articles left with the husband were a bed and a sofa set. The judge estimated the costs of the bed and sofa at Rs. 1,000 and for this he made a decree in wife's favor.

(17) Counsel for the wife challenges the validity of the receipt and questions the testimony of the witness B. G. Baid in whose presence the receipt was executed. I see no reason to differ from the learned judge. He has given cogent reasons for arriving at the conclusion. He found that the wife had brought the articles with her and given a receipt thereof on February 4, 1974. In my opinion there was evidence on which he could so find. I cannot find fault with his reasoning and conclusion consonant as they are to evidence.

(18) For these reasons the appeal as well as application are dismissed with costs. Counsel's fee Rs. 200.


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