Skip to content


Manicka Vatsala Bai Vs. Manicka Raja Rao - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1970)2MLJ225
AppellantManicka Vatsala Bai
RespondentManicka Raja Rao
Cases ReferredM.P. Shreevatsava v. Mrs. Veena A.I.R.
Excerpt:
- .....32 of the civil procedure code and finding that there is no other provision which could compel a decree holder in a suit for restitution of conjugal rights to apply for execution of such : a decree and in the absence of any provision which would enable the judgment-debtor or the respondent in a suit for restitution of conjugal rights to compel the decree-holder to execute the decree or in. the alternative take her back dismissed the petition as not maintainable. as against this the present c.m.s.a. has been filed3. mr. henderson the learned counsel for the respondent rightly urged that in a proceeding which relates to restitution of conjugal rights. it would be an impossible state of affair, if as in the instant case, the wife is unable to obtain a remedy in a civil court to join her.....
Judgment:

T. Ramaprasada Rao, J.

1. This is an appeal against the order of the learned District Judge, Madurai in C.M.A. No. 104 of 1964.

2. The appellant is the Wife and the respondent is the husband. The respondent obtained a decree for restitution of conjugal rights in O.P. No. 145 of 1961 on the file of the Principal Subordinate Judge Madurai which ended in a decree on 20th August, 1962. Curiously enough the respondent never took any steps to execute the decree in a manner known to law or to take back the wife under normal circumstances. In fact it is not in dispute that the wife (the appellant) was entreating the respondent to take her back and the respondent besides subjectively expressing his willingness to take her back never took active steps to implement his desire The wife obviously having become apprehensive of the state of affairs filed E. A. No. 598 of 1964 for an order to direct the respondent to take her back in implementation of the decree for conjugal rights obtained by him. In the first Court the husband was export and the application was ordered. Then on appeal the learned District Judge reversed the order of the learned Subordinate Judge on the only ground that the E. A. or the petition, as I would call hereafter, by the wife was not maintainable. The learned District Judge referred to Order 21 Rule 32 of the Civil Procedure Code and finding that there is no other provision which could compel a decree holder in a suit for restitution of conjugal rights to apply for execution of such : a decree and in the absence of any provision which would enable the judgment-debtor or the respondent in a suit for restitution of conjugal rights to compel the decree-holder to execute the decree or in. the alternative take her back dismissed the petition as not maintainable. As against this the present C.M.S.A. has been filed

3. Mr. Henderson the learned Counsel for the respondent rightly urged that in a proceeding which relates to restitution of conjugal rights. it would be an impossible state of affair, if as in the instant case, the wife is unable to obtain a remedy in a civil Court to join her husband, who in spite of the decree in his favour refuses, delays or procrastinates in executing the same. Whatever may be the motive of the decree-holder in a suit for restitution of conjugal rights in postponing execution of the said decree in a manner known to law and particularly Order 21, Rule 32, in a case where there has been an inordinate delay in the manner of such execution and where the wife is ready to join him willingly, then is it to be presumed that the arm of law cannot extend, so as to bring within its fold a recalcitrant decree-holder who refuses to implement a decree of Court to subserve his own ends I do not think so. It is elementary that when a competent Court passes a decree and thus adjudicates the rights of parties in a lis, whatever may be its nature, then the ordinary presumption is that such a decree is normally executable. Particularly it is so in a case where marital rights are involved. When a suit is filed by a husband seeking restitution of conjugal rights, and if it results in a decree, the husband cannot evade the normal consequences that flow from such a decree by keeping it with him and showing inaction and without even filing a process for execution of the same. That by itself is an indicia of some unreasonable delay on the part of the decree-holder in a case of this kind. In such circumstances, if the wife who is anxious to join the husband files an application, may it be an E.A. or a C.M.P. or a petition, and sets in motion the process of law to compel the decree-holder to execute the same, it cannot be said that it is not maintainable and the Courts are helpless. It is only in such circumstances that the inherent jurisdiction of Courts come into play to render justice and to do such things as are necessary, so that decrees of Court which were executable and intended to be executable may be executed. It is in such circumstances that the petitioner has come up with the application in question. The nomenclature used by the petitioner as if it was an execution application, need not detain us for the purpose of rejecting the same. It is purely a name given by her only to set the law in motion. It is really an application to enter up satisfaction of the decree. In my view, the petitioner can obtain redress under Section 151 if the husband (respondent) unsually and inordinately and without reasonable excuse delays the execution of a decree for conjugal rights. This view of mine is subscribed to a very great extent in the ratio in the case reported in M.P. Shreevatsava v. Mrs. Veena A.I.R. 1965 Punj. 54. There, the learned Judge observed:

In case, however, the judgment debtor is willing to obey the decree but the unjustified obstruction towards the performance of the decree comes from the decree-holder, then in my opinion, the judgment debtor would be fully entitled to approach the Court and pray that the decree be recorded as satisfied so that the decree holder may not fraudulently and mala fide utilise this decree for the purpose of securing a decree for divorce.

4. In effect, therefore, the application by the wife tantamounts to an application for satisfaction of the decree in order to avoid any future mala fide proceeding at the instance of the husband against the wife. I am satisfied that the application. is maintainable and the same having been dismissed by the learned District Judge as not having been maintainable, the order has to be set aside and it is accordingly set aside.

5. The C.M.S.A. is, therefore, allowed with costs and the learned Subordinate Judge, Madurai, is directed to enquire into the matter in full and grant the appropriate relief to which the appellant is entitled to.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //