Jagat Narayan, C.J.
1. These are two connected revision applications by Dr. Narpat, Singh Gehlot, Assistant Professor, Electrical Engineering Department, Indian Institute of Technology, Kanpur. They arise out of two suits for maintenance filed against him by his wife Smt. Chandralekha and his son Krishma Kumar alias Ajai respectively in the Court of Munsif City. Jodhpur, on 30-3-72 Dr. Narpat Singh Gehlot filed an application under Sections 9 and 10 of the Hindu Marriage Act for restitution of conjugal rights or judicial separation in the alternative, in the court of Second Civil Judge, Kanpur, against his wife Smt. Chandra Lekha on 25-1-72 He filed an application in the Court of the City Munsif, Jodhpur, for stay of the proceedings in the two suits under Section 10, Civil PC read with Section 151, Civil P.C. Both these applications were rejected by the learned Munsif and the present revision applications have been filed against his orders.
2. Dr. Narpat Singh Gehlot was married to Smt. Chandralekha at Jodhpur on 17-5-70. Since then they had been living as husband and wife at Jodhpur and then at Kanpur where Dr. Gehlot is posted. Smt. Chandralekha became pregnant at Kanpur and left for her father's house in Jodhpur from Kanpur on 27 9-70. A son was born to her at Jodhpur on 3-4-71. Dr. Gehlot came to Jodhpur to take her back to Kanpur but she refused to go with him. The case of Dr. Gehlot under Section 9 of the Hindu Marriage Act is that Smt. Chandralekha has withdrawn from his society without reasonable cause. His case under Section 10 is based on Clause (b) of Sub-section (1) of Section 10 of the Hindu Marriage Act. The relevant provisions of the Act run as follows:
Section 9--Restitution of Conjugal Rights:
(1) When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.
(2) Nothing shall be pleaded in answer to a petition for restitution of conjugal rights which shall not be a ground for judicial separation or for nullity of marriage or for divorce.
Section 10--Judicial Separation:
(1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition to the district court praying for a decree for judicial separation on the ground that the other party:
(b) has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party....
Smt. Chandralekha's petition for separate maintenance is based on Clause (b) of Sub-section (2) of Section 18 of the Hindu Adoptions and Maintenance Act which runs as follows:
Section 18-Maintenance of wife:
(1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime.
(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance:
(b) if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband
Her case is that it was Dr. Gehlot who treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband.
3. So far as the case of Smt. Chandralekha is concerned, the learned Munsif agreed that the matter directly and substantially in issue in this case is directly and substantially in issue in the earlier case filed by Dr Gahlot against Smt Chandralekha in the Kanpur Court. But, he declined to stay proceedings in the case before him on the ground that issues had not been framed so far in the case before him and, therefore, it could not be said that the trial of the suit had commenced In taking this view he relied on a decision of the Judicial Commissioner's Court, Manipur, in Laisram Rasmon Singh v. Hidangmayum Dwijamani Sharma and Ors. AIR 1964 Mani 2. The learned Judicial Commissioner observed:
What Section 10 provides is that the trial of the second suit shall not be proceedpd with. Thus all the preliminaries prior to the trial upto the stage of framing the issues should be gone through in both the suits before Section 10 is sought to be applied. Where the stage has not arrived, stay of subsequent suit under Section 10 is clearly premature and must be set aside.
4. With all respect to the learned Judicial Commissioner, who decided the case, the trial of a suit commences with the institution of a plaint and not after issues are framed. The Court is bound to stay the subsequent suit under Section 10, Civil P, C as soon as it becomes clear to it that the matter directly and substantially in issue in both the suits is the same. Where the parties have filed cross suits from the plaints of which it is quite clear that the matter directly and substantially in issue in the two cases is the same, the Court need not wait even for the filing of the written statement before staying proceedings in the subsequent suit under Section 10, CPC In this connection, I may refer to the decision of a Division Bench of the Calcutta High Court in Shorab Merwanji Modi and Anr. v. Mansata Film Distributors and Anr. : AIR1957Cal727 In that case, cross suits were filed on the basis of the same agreements in the Bombay and Calcutta High Courts. The suit in the Bombay High Court was filed earlier. No written statement had been filed in the Calcutta suit. But, nevertheless, it was stayed under Section 10, Civil P.C. It was observed at page 734 of the AIR:
It is true that no written statement has yet been filed in the Calcutta suit, but what the defence of the Calcutta suit will be is fairly clear from the plaint in the Bombay suit itself as also the application made to this Court by Modi. If the Calcutta plaintiff's defence in the Bombay suit is substantially his plaint in the Calcutta suit and if the Bombay plaintiff's defence in the Calcutta suit is virtually his plaint in the Bombay suit, the matter in issue between the parties in the two suits would seem to be substantially the same.
5. It is clear that the allegations which Smt Chandralekha will make in her written statement in the petition filed at Kanpur will be the same as have been made by her in the petition for maintenance filed by her at Jodhpur. In the same way, the allegations which Dr. Gehlot will make in his written statement in the petition filed by Smt. Chandralekha in the Jodhpur Court will be the same as those made by him in his petition filed in the Kanpur Court.
6. Apart from this, under Section 9 of the Hindu Marriage Act nothing can be placed in answer to a petition for restitution of conjugal rights which shall not be a ground for judicial separation or for nullity of marriage or for divorce The wordings of Clause (b) of Sub-section (1) of Section 10 of the Hindu Marriage Act are the same as those of Clause (b) Sub-section (2) of Section 18 of the Hindu Adoptions and Maintenance Act
7. The trial of the petition filed by Smt. Chandralekha in the court of Munsif City, Jodhpur, should, therefore, be stayed under Section 10, CPC.
8. I, accordingly, allow revision application No. 263/1972 filed by Dr. Gehlot against his wife Smt. Chandralekha.
9. Coming now to civil revision No. 258 of 1972 filed by Dr. Gehlot against his infant son Krishna Kumar, it cannot be stayed under Section 10, CPC as Krishna Kumar is not a party to the proceedings pending in the Court of Second Civil Judge, Kanpur. The petition by the son is based only on Section 20 of the Hindu Adoptions and Maintenance Act.
10. Learned Counsel for Dr. Gehlot drew my attention to Clause (e) of Sub-section (2) of Section 23 of the Hindu Adoptions and Maintenance Act, and contended that whether or not any maintenance is to be granted to the infant son would depend on whether he is justified in living separately On the other hand, on behalf of the infant son my attention was drawn to Section 6(a) of the Hindu Minority and Guardianship Act which lays down that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother. Whether the infant son will he entitled to separate maintenance is a question which will have to be gone into if & when the occasion for it arises. It is unnecessary to go into this question at this stage. I express no opinion on the question as to whether the learned Munsif will be justified in staying the suit under Section 151, Civil P.C. in case he finds that the infant son will only be entitled to maintenance if his mother is entitled to claim separate maintenance from her husband.
11. The revision application No. 258 of 1972 is accordingly dismissed.
12. In the circumstances of the case, I leave the parties to bear their own costs in both the revision petitions.