T.P.S. Chawla, J.
(1) If this case is any indication of the way in which the divorce laws are administered in our courts, there is certainly much cause for dismay. On any view, what happened in this case is very perturbing.
(2) In February 1977, the husband instituted a petition, under section 9 of the Hindu Marriage Act, 1955, for restitution of conjugal rights. He alleged that the wife had 'withdrawn' from his 'society' without 'reasonable excuse', and had not returned despite requests. He also made some complaints about her behavior towards him and his mother.
(3) By her answer, the wife alleged, that, soon after the marriage, the husband began making extortionate and unending demands for dowry; and when they were not met she was beaten brutally and ill-treated in many other ways. She said, he had even threatened to kill her and her baby daughter so that he could remarry. Ultimately, she was turned out of the house with her little daughter and not allowed to take anything except the clothes she was wearing.
(4) The husband, of course, denied the wife's version, and maintained that she had left without 'any cause or reason'. He reiterated that she had 'misbehaved' with him. and the members of his family, and quoted some further instances. He alleged that. in addition to all her clothes, she had taken away cash, jewellery and other valuables with her.
(5) After the pleadings were closed, the evidence of the wife was recorded in October and November 1977. She was examined inchief and cross-examined at considerable length. In answer to a question put at the end of her cross-examination she said : 1 do not want to go to the house of the' petitioner due to his aforesaid attitude'. She had earlier described in detail the manner in which her husband had treated her. On the next day, the .statement of a witness called by the wife was recorded in part. The case was then adjourned for recording the remaining evidence of the parties on 15th December 1977 and the succeeding' days.
(6) On 15th December 1977 the judge has recorded that the parties had 'talked about the (sic) reconciliation' and the wife wanted time 'to reconcile the matter' (by which, I think, he means she wanted time to 'consider' the matter). No evidence was recorded, and the matter was allowed to stand over till the next day.
(7) On 16th December 1977 the judge recorded the statements of the parties. They are recorded in Hindi, so I will translate them. The wife said :
'I will go with petitioner (the husband) just now. (She then said) I will go next Friday. The petitioner must provide me with a separate kitchen and must not hit or beat me. My parents will be entitled to come and see me. I will not go to my parents every other day. If the petitioner takes me, I will withdraw my other allegations.'
It can easily be seen that the wife was filled with misgivings. She was not willing to go with the husband without some assurances. At first she said she would go with him 'just now', but in the next breath postponed it to the coming Friday. She wanted an assurance that she would get a separate kitchen. But most important of all, she sought an undertaking that she would not be beaten. The fact that she stipulated even for the right to have her parents visit her, shows the sorry pass to which things had come.
(8) Then, the husband's statement was recorded. He said :
I accept what has been stated by the respondent (the wife). Even earlier her kitchen was separate, and it will remain separate in the future. I never beat her, nor will I do so. If the respondent goes with me, I will withdraw all my allegations, provided she lives with me continuously. the then said) I will make the statement about withdrawing the adlegations when the respondent really wishes to live with me and I am satisfied about that.'
So, the husband also had his doubts. The chances of reconciliation were obviously not very bright.
(9) After recording the statements, the judge adjourned the case to 23rd December 1977 for further orders. It is not clear, what, if anything, happened during the intervening period. From the subsequent proceedings it can be inferred that nothing happened, and the parties did not come together.
(10) On 23rd December 1977, the judge again recorded the statements of the parties. This time the statements were extremely brief. The husband simply said : I am taking the respondent with me today to my house'. The wife said : I am going with the petitioner to his house today'. The judge merely adjourned the matter to 2nd January 1978 for further orders.
(11) For some reason, no proceedings took place on 2nd January 1978 and the case was adjourned to 9th January 1978. On this latter date the judge recorded an order which, though replete with typing and other mistakes, succeeds in portraying the situation. Uncorrected, the order reads as follows :
'THOUGH the respondent has been living for the last 18 days since 23-12-1977, but it appears that they are not h've been very mooth relations. The respondent alleged that she has been hearten and mal-treated and the petitioner abuses on the every person in the family, and denys maltreatment. Today at least the respondent is not willing to go with the petitioner- I adjourn the case till thursday. In the meanwhile both the parties should think. what have they lost and gain during 16 or 18 days. Case shall come up on 12-1-1978. The respondent presently going today with her mother and father.'
It is worth noting that, once again, it is the wife who refuses to go with the husband. Immediately thereafter, probably on the insistence of the wife, the judge recorded a postscript :
'THE respondent also allege that her statement has been recorded by tape record. The petitioner states that no tape record has been used to record her statement.'
(12) It was thus patent that the attempt at reconciliation was a fiasco, and, indeed, had given rise to further animosity. In that background, the sage advice of the judge that 'both the parties should think, what they have lost and gain(ed) during 16 or 18 days', though doubtless well-meant, seems mawkish and unrealistic.
(13) On 12th January 1978 the wife did not come to court, but only her father did. He told the judge that the wife had not come as her daughter was ill. So the case was adjourned to 19th January 1978.
(14) On 19th January 1978, when the case was called, only the parties were present, and not their counsel. Without waiting for counsel to arrive, the judge proceeded to record the statements of the parties. The wife made a most remarkable statement. She said
I am willing to live with the petitioner whatever the consequences. Even if he hits or beats me, I will bear it. A decree may be passed against me.'
This was a total surrender, wholly out of keeping with the wife's attitude in the past. It ought to have put the judge on his guard. But, unaffected and unconcerned, he went on to record the statement of the husband, who said :
I am taking the respondent with me. I will keep her happy in every way.'
On this occasion, the husband was not even required to expressly give an undertaking that he would not beat the wife. Forthwith a decree for restitution of conjugal rights was granted to the husband. It was based only on the statements made by the parties on that day, and did not touch the merits.
(15) Not surprisingly the 'reconciliation' did not last even for a day. This is revealed from applications subsequently moved by each of the parties. According to the husband, on reaching his house the wife said she had no intention of living with him, and had only come with him from the court so that the decree may be deemed to be satisfied. According to the wife, even on the way to his house from the court, the husband started abusing and chiding her for not conceding him a divorce. At the house she was beaten by the husband's mother and sister and then locked out. Both parties say they lodged reports with the police. I am not concerned with those applications, and, in any case, they produced no tangible result.
(16) The wife has now appealed against the decree, and the question is whether it should be allowed to stand. In my opinion the appeal must succeed on three grounds.
(17) First, assuming that a decree for restitution of conjugal rights can be made on the basis of a compromise (a question to which I will presently turn), nevertheless, here, the judge should have refused to record the compromise for two reasons :
(I) The statement made by the wife was obviously not free and voluntary. No woman in her right senses would, of her own free will, say that her husband may beat her as much as he liked and she would put up with it. The very fact that so startling a statement was being made before him by the wife, should have caused the judge to hesitate and consider whether it was voluntary. More especially, when this wife on previous occasions had complained bitterly about being beaten, and had demanded. assurances in that respect before even contemplating an experimental reconciliation. I am astonished that the judge could bring himself to record, a statement by the wife which, on the face of it, gave license to the husband to commit a crime. It is hard to find an excuse for the judge, except that he was carried away by his zeal for a reconciliation.
(II) The so-called compromise was illegal. This becomes apparent from its consequences. By the decree for restitution granted by the judge, the wife is required to live with the husband. In her statement, the wife has undertaken to suffer any amount of violence. So the husband is now free to beat her as much, he pleases. He has given no undertaking that he will not. Taken to its logical limit, the decree, in effect, gives him a license to beat the wife to the point of death and she has no right to complain. The agreement is not only absurd, but plainly unlawful. If permitted, it would defeat the provisions' of the criminal law. It also 'involves or implies injury to the person' of the wife. And, I should think it is 'opposed to public policy' if not also 'immoral'. For all those reasons it violates section 23 of the Contract Act 1872.
(18) A little reflection would have shown the judge the grave implications of the order he was making. Whether Order 23 rule 3 of the Civil Procedure Code applied to the proceedings directly or by analogy, this 'agreement' or 'compromise' was not lawful' and, hence, could not be 'recorded'. Both legally and otherwise the agreement was so atrocious that it should not have been accorded the sanction of the court.
(19) The second ground on which the appeal must be allowed is that a decree for restitution of conjugal rights cannot be passed merely on the basis of a compromise. This is clear from section 23(1) of the Hindu Marriage Act 1955, the relevant words of which are as follows :
In any proceeding under this Act, whether defended or lift, if the court is satisfied that
(A)any of the grounds for granting relief exists.......... .................'then, and in such a case, but act. otherwise, the court shall decree such relief accordingly.'
I have omitted the unnecessary words and also clauses (b) to (c) because they do not bear on the present question. It is perfectly clear from this section that the court can exercise its jurisdiction to grant a decree only if if is 'satisfied' that 'any of the grounds for granting relief exists'. The court is expressly prohibited from granting a decree 'otherwise'. . Recording a compromise does not mean or imply that the court is 'satisfied' about the existence of a ground for relief. On the contrary, it may possibly lead the court to suspect collusion which is a bar to relief. thereforee, a compromise will not justify a decree.
(20) This was always the position in English Law on which section 23(1) is based. In Rayden on Divorce (10th edn.) page 264 it is stated :
'A decree must be refused, even if the suit be not defended, where there is no jurisdiction to mate it, or in the absence of sufficient, proof of the allegations put forward, for judgment by default is unknown in matrimonial causes : the jurisdiction of the Court is not affected by consent, the public interest does not allow it, and no admission binds the Court ; the analogy of ordinary actions cannot be applied. The Court is obliged by statute to inquire into the existence of the bars to relief.'
That passage was quoted .with approval in Mrs. Sushila Mahendra Nanavati v. Mahendra Manilafl Nanavati A.I.R.1960 Bom 117, which ruled that in matrimonial proceedings there can be no 'judgment 'by default or admission. It is thus well-settled that in matrimonial proceedings analogies drawn from ordinary actions do not prevail. That land of approach was specifically disapproved in Smt. Alopbai w/o Ramphal and another v. Ramphal Kunjilal and others, : AIR1962MP211 . All the arguments which counsel for the husband advanced before me proceeded on such analogies. Since the analogies do not hold, those arguments are not valid.
(21) With respect -to an action for restitution of conjugal rights, in particular, it has been repeatedly held that a decree cannot be passed unless all the requirements of section 9 of the Hindu Marriage Act are established to the satisfaction of the court : see Smt. Shanti Devi v. Balbir Singh Gupta and another, 2nd (1971) I DelHI 213, and the many cases cited therein. And, even then the court has a discretion to refuse relief if the petitioner is taking advantage of his own wrong or is not sincere or there is some other bar to relief : see Ram Kali v. Same Singh 1969 D.L.T. 519, and Sadhu Singh Balwant Singh v. Smt. Jagdish Kaur Sadhu Singh . It is true that these cases do not expressly decide that a decree for restitution of conjugal rights cannot be founded on a compromise, but that is implicit in the reasoning.
(22) However, there is one case in which a contrary view has been taken. In Krishna Devi v. Mohan Lal 1978 H.L.R. 544, a single judge of the Punjab and Hatryana High Court has held that there is- nothing in section 9 of the Hindu Marriage Act which bars the court from passing at 'decree for restitution of conjugal rights on the basis of a compromise'. It appears that the point, was not fu.lly argued before the judge, for his attention does not seem to have been drawn to any of the relevant authorities or even to section 23(1) of the Act. He has disposed of the matter in just one sentence. With respect, I do not agree with him, and in my opinion that case was wrongly de- cided. The argument that the compromise decree was 'non est' was in my opinion, valid.
(23) Thirdly, and in any event, since the compromise resulted in a reconciliation, the right course for the court was to dismiss the petition and not to grant a decree. Ireach this conclusion as follows-
(24) Suppose, whilst a petition for judicial separation or divorce is, pending, the parties become reconciled and decide to resume cohabitation. What order should the court make Obviously, the petition. has to be dismissed and no degree can be paused. But, why Clearly, because the petitioner no longer requires any relief from the court.
(25) Why should the answer be any different when what is pending is a petition for restitution? Here, too, the petitioner no 'longer requires any relief from the court because what he sought he has already obtained by the reconciliation. A decree by the court is, thereforee, redundant.
(26) Furthermore, by agreeing to resume cohabitation the respondent does not admit the allegations in the petition, and is not confessing judgment. It is an arrangement by which the Parties agree to bury the past and start afresh. It involves no allocation of guilt. To grant a decree in' those circumstances is to impose on the respondent an admission when none has been made. The decree would, thereforee, be without jurisdiction for it is based on nothing : neither evidence, nor an admission nor consent.
(27) In the present case, the wife never admitted the allegations in the petition to be true. Rather, in saying that she would live with the petitioner whatever the consequences and even tolerate being beaten, she presumed the correctness of the allegations in her reply. Hence, her statement that a decree may be passed against her was a non-sequitur and should have been disregarded.
(28) In proceedings for restitution, however, there is a complicating factor which has no parrallel m other matrimonial proceedings. The offer to return to cohabitation may itself be a ruse. By making an insincere offer to return, the respondent can have the petition dismissed and afterwards fail to abide by the offer. In that event the petitioner would have been defeated by a trick. English courts coped with the difficulty by inquiring into the Question whether the respondent's offer to return to cohabitation was bona fide : see Barcroft v. Barcroft, (1921) Pro 435(7). It was provided in Rules 26 of the Matrimonial Causes Rules 1957 that
'AT any time after the commencement of proceedings for restitution of conjugal rights the respondent may apply for an order to stay the proceedings on the ground that he is willing to resume or to return to cohabitation with the petitioner.'
On such application being made. the court would inquire into the bona fides of the offer and stay the proceedings if it thought fit. The ultimate result depended on how it all turned out.
(29) In Halsbury's Laws of England (3rd edn.) volume' 12 page 284 paragraph 554 it is stated :
'AT any time after the commencement of proceedings for rcsutution of conjugal rights, the respondent may apply for an order to stay the proceedings on the ground that he is willing to resume or return to cohabitation. Such an application must be bona fide. and will not be permitted where the respondent is in contempt to the Court. A. decree will be granted where there has been a resumption of cohabitation for the purpose only of defeating the proceedings. Where there has been an effective bona fide offer to return to cohabitation, the petition may be dismissed.'
Similar statements of the law occur in Rayden on' Divorce (10th edn.) at pages 253-254 and in Tolstoy on The Law and Practice of Divorce (5th edn.) at Page 101. Thus, if the offer to return to cohabitation is bona fide, the petition should be dismissed. A decree can be granted only if the offer is made 'for the purpose of defeating the proceeding'. That is understandable, because in law, tht position resulting from an insincere offer must be the same as if no offer had been made at all.
(30) Now, here, the judge took it for granted that the offer made by thp. wife to return to cohabitation was sincere. So much so, that he did not even think it necessary to inquire into her bona fides. Nor did the husband Voice any doubts. In these circumstances, the judge was bound to dismiss the petition and could not grant a decree. He could have granted a decree only after rejecting the offer as insincere, and proceeding to try the petition on the merits.
(31) That is enough to dispose of the appeal, but there is something more that I desire to say. Courts should be especially wary of actions for restitution of Conjugal rights. The reason is that by its very nature the action induces hypocrisy and falsehood. Ostensibly the-petitioner complains about having been deprived of the company of the respondent. It has to be alleged that the respondent has 'withdrawn from the society' of the petitioner without 'resonable excuse'. Yet, almost invariably, what the petitioner really wants is a divorce. No one can seriously think that litigation in Court is the right way of winning the affection of an estranged spouse. Nor is the court gifted with the power of producing a change of heart. It cannot compel one spouse to live with the other. The most that can be done under Order 21 rule 32, Civil Procedure Code, is to attach the .property of the disobedient respondent. After the amendment of that rule in 1923, imprisonment is not permissible. Any practitioner or judge understands that the real purpose of a restitution proceeding is to achieve a divorce or some other ulterior object.
(32) This is not only my experience. It has been the experience of judges for over acentury. A hundred years ago, in' Marshall v. Marshall (1879) 5 P.D. 19(8), Sir Jams Hannen said :
'AND I must further observe that so far are suits for restitution of conjugal rights from being in truth and in fact what theoretically they purport to be, proceedings for the purpose of insisting on the fulfillment of the obligation of married persons to live together, I have never known an instance in which it has appeared that the suit was instituted for any' other purpose than to enforce a money demand.'
In English law, at that time, it was not possible for the wife to obtain af maintenance order except as an ancillary to a proceeding for some matrimonial relief. That is what impelled wives to petition for restitution when they had no grounds for a divorce or did not wish to seek it.
(33) But the law in England has now changed. By section 20 of the Matrimonial Proceedings and Property Act 1970 the right to claim restitution of conjugal rights has been abolished. . This was in pursuance of a recommendation made by the Law Commission in England in 1969. The Chairman was Mr. Justice Scarman. After considering all the pros and cons, the Commission reached the conclusion that the action had outlived its utility. They said : 'A court order directing adults to live together is hardly an appropriate method of attempting to effect a reconciliation'. They added : 'The 'order' has in fact no teeth and only brings the law into disrepute ...........', and referred to a striking case to illustrate the futility of the decree.
(34) Restitution of conjugal Tights was unknown both to 'Hindu and Mahommedan Jaw. It was an importation from the law of England where, too, it has now been abolished. For assessing whether this action should be retained in India at the present day, it is worth recalling its origin and history. This is succinctly summarised in paragraph 2 of the report of the English Law Commission as follows :
In the Ecclesiastical Courts desertion was not a matrimonial offence and the only remedy available to a deserted spouse was to obtain a decree of restitution of conjugal rights which ordered the deserter to return and to render conjugal rights. Disobediance to the decree was punished by excommunication' until the Ecclesiastical Courts Act 1813, which substituted imprisonment not exceeding six months for the sentence Of excommunication. By the Matrimonial Causes Act 1884 failure to comply with a restitution decree ceased to be punishable by imprisonment; instead, such failure to comply was deemed to be desertion (known as 'statutory desertion'), entitling either spouse to an immediate decree of judicial separation and, if coupled with the husband's adultery, entitling the wife to an immediate divorce. The Matrimonial Causes Act 1923 gave the wife the right to divorce the husband for adultery alone, so that it thereafter became unnecessary for her to rely on his failure to comply with a restitution decree in order to obtain a divorce. The Matrimonial Causes Act 1884 was repealed by the Supreme Court of Judicature (Consolidation) Act 1925 and, while re-enacting that failure to comply with the decree was to be a ground for judicial separation (section 185), the provision in the 1884 Act that such failure was deemed to constitute desertion, was not re-enacted.'
(35) It thus emerges that the action for restitution of conjugal rights is a relief of finish Ecclesiastical law. It was transported to this country by section 32 of the Indian Divorce Act 1869. In due course, that became the progenitor of similar provision in subsequent Indian statutes dealing with marriage and divorce. One such, is section 9 of the Hindu Marriage Act which is practically a verbatim reproducction of section 32 of the Indian Divorce Act.
(36) From the history of the action, which I have quoted above, it transpires, that in English law the purpose served by a decree for restitution was to establish desertion and. also, to enable ancillary orders for maintenance to be made. Its function under the- Indian Divorce Act was the same. The basic reason which persuaded the English Law Commission to recommend abolition of the remedy of. restitution, was that desertion 'can be demonstrated equally clearly by other more appropriate approaches'. That reason is not any the less valid in India. It leads to the conclusion that the action for restitution is unnecessary.
(37) Under the Hindu Marriage Act, the remedy of restitution is capable of grave abuse. In English Law, non-compliance with a decree for restitution has never of itself been a ground for divorce. Even section 12(1) of the Matrimonial Causes Act 1965 made failure to comply with a decree for restitution only a ground for judicial sepa ration. In a subsequent proceeding for divorce, the court was empowered by section 3 to treat the decree of judicial separation as 'sufficient proof of the ground on which it was granted. The Value of the decree for restitution lay in that non-compliance could be used as prima facie evidence of desertion, when that was the ground on Which divorce was sought : see Rayden on Divorce (10th edn.) page 254.
(38) But the Hindu Marriage Act has put the decree for restitution completely on par with a decree for judicial separation. In either case. if there is no resumption of cohabitation within a certain period. a ground for divorce arises : see section 13(IA). In a proceeding for restitution, the burden is on the respondent to prove 'reasonable excuse for withdrawal from the society' of the petitioner. This is now expressly stated by the Explanationn to section 9, which was added by amendment in 1976. Hence, by the mere filing of at petition for restitution the respondent is immediately put on the defensive. Should the burden somehow fail to be discharged, the petitioner is well away on the road to divorce. So, with luck, be can' get it simply by feigning loss of consortium, when he has no other ground available. Had a petition for divorce been filed on the ground of desertion, the burden would have lain heavily on the petitioner. I doubt if the draftsman of the Hindu Marriage Act fully realised the consequences of what he was doing. Apart from .other demerits, the provisions with regard to restitution of conjugal rights provide ample scope for bringing the law into disrepute.
(39) Before the Hindu Marriage Act was passed, a; Joint Committee of the Houses of Parliament made a report : see Gazette of India 1954, Part Ii Section 2 page 675- A few members opposed the inclusion of the provision regarding restitution of conjugal rights. One of them put it rather forcefully with the aid of a homely simile. It is on page 696 :
'RESTITUTION of conjugal rights smacks of eighteenth century approach to the problem of unhappy marriage. It is true the court with its well developed social conscience may lead an unwilling horse to the .water, but it can never force the horse to drink. The government will be well advised to delete it.'
But that was the minority view, ad the provision was retained
(40) In its Fifty-Nine Report (1974) the Law Commission of India proposed certain amendments in section 9 of the Hindu Marriage Act, and those have now been implemented. Although the Commission took notice of the fact that in England 'The action has recently been abolished', unfortunately it left it at that and did not go into the question whether the same should be done here.
(41) In 1975, the Indian Law Institute held a Seminar on the Hindu Marriage Act 1955 and the Special Marriage Act 1954. There was unanimity of opinion that the remedy of restitution should be abolished : see Studies in the Hindu Marriage and Special Marriage Acts published by the Indian .Law Institute page 319.. Regretably, the opportunity for repeal was missed by the Marriage Laws. (Amendment) Act 1976.
(42) For my part, I have no hesitation in aligning myself with those who would wish to see the action for restitution buried and relegated to the past. The quicker that is done the better it would be for the law as well as matrimony.
(43) Meanwhile, courts should approach petitions for restitution of conjugal rights with the utmost suspicion'. Rarely, if ever, can the purpose be a reconciliation. The duty imposed on the courts by section 23(2) of the Hindu Marriage Act 'to make every endeavor to bring about a reconciliation between the parties' has to be discharged with great care and caution. It is a delicate jurisdiction which can easily become oppressive. In proceedings for restitution of conjugal rights, offers of reconciliation frequently become calculated never in the game. Either party may use them for defeating or getting an advantage over the other.
(44) In the present case, I am certain that the wife would not have made the statement that she did, just before the decree was passed, if she had not been driven to the extremity of resignation by the repeated, and rather insistent, attempts to effect a reconciliation. It does not do much credit to the court. The enthusiasm of the judge for al reconciliation seems to have crossed all bounds.
(45) For the reasons which I have stated this appeal must be allowed. The decree passed by the court below is set aside. The case will now proceed to trial in accordance with law from the stage it bad previously reached. Having regard to the peculiar circumstances of the case, I refrain from making any order as to costs.