KUSUM LATA Vs. KAMPTA PRASAD
LAWS(ALL)-1964-2-14
HIGH COURT OF ALLAHABAD
Decided on February 12,1964

KUSUM LATA Appellant
VERSUS
Kampta Prasad Respondents


Cited Judgements :-

CHANDER PARKASH SACHDEVA VS. SUDESH KUMARI SHARMA [LAWS(DLH)-1970-11-13] [REFERRED]
SANTOSH SHARMA VS. ASHOK KUMAR [LAWS(DLH)-2001-5-149] [REFERRED]
SAPTAMI SARKAR VS. JAGADISH SARKAR [LAWS(CAL)-1968-11-8] [REFERRED TO]
BASDEO SINGH VS. BINODE BEHARI GHOSAL [LAWS(CAL)-1972-12-5] [REFERRED TO]
MADANLAL SHARMA VS. SANTOSH SHARMA [LAWS(BOM)-1979-11-4] [REFERRED TO]
LALITA DEVI VS. RADHA MOHAN [LAWS(RAJ)-1975-10-21] [REFERRED TO]
JANARDHANAN PILLAI VS. KOCHUNARAYANI AMMA [LAWS(KER)-1976-3-21] [REFERRED TO]
PRITI PARIHAR VS. KAILASH SINGH PARIHAR [LAWS(RAJ)-1977-9-2] [REFERRED TO]
PARWATI DEVI VS. HARBINDRA SINGH [LAWS(RAJ)-1980-1-5] [REFERRED TO]
SHANTI DEVI VS. RAGHAV PRAKASH [LAWS(RAJ)-1984-10-4] [REFERRED TO]
JAI NARAIN HAR NARAIN VS. L. BULAQI DAS S/O. L. MUNNA LAL [LAWS(ALL)-1968-9-11] [REFERRED TO]
HANUMAN RAI VS. DY. DIRECTOR OF CONSOLIDATION AND ORS. [LAWS(ALL)-1967-7-22] [REFERRED TO]
SHANTI NIGAM VS. RAMESH CHANDRA NIGAM [LAWS(ALL)-1970-8-46] [REFERRED TO]
SEEMA ALIAS AARJU VS. RAVINDRA SINGH [LAWS(ALL)-2020-1-298] [REFERRED TO]
SMT. NEELAM DEVI VS. VIKAS SINGH [LAWS(ALL)-2020-10-55] [REFERRED TO]


JUDGEMENT

M.H.BEG,J. - (1.)JUDGEMENT This is a second appeal by a wife who had filed a petition under Sec. 10 of the Hindu Marriage Act (hereinafter referred to as the Act) for Judicial separation against her husband the respondent Kampta Prasad. The husband too had filed a petition under Sec. 9 of the Act against the appellant for the restitution of his conjugal rights to him before the appellants petition for judicial separation. Both the proceedings were consolidated and the evidence led by both the parties was common and the two cases were disposed of by a common judgment. The trial court dismissed both the petitions. In each of the two proceedings there was a separate issue on the question whether the respondent had treated the appellant with such a cruelty as to cause a reasonable apprehension in the mind of the appellant that it will be harmful or injurious for her to live with the respondent. The two separately framed issues on the same question were considered and decided as one common issue in the consolidated proceedings. While discussing this issue, the trial court took one allegation after another made by the wife against the husband, and held some allegations not to have been proved at all, and others, although, proved, as insufficient to amount to cruelty. The trial court also framed an issue in the husbands suit for the restitution of conjugal rights in the following terms :
"Whether the plaintiff is entitled to restitution of conjugal rights ?

(2.)IN dealing with tins issue, the trial Court dealt with only some of the instances of cruelty given by the wife and recorded the following conclusions :
"Here, there was an indifference and a neglect on the part of the husband the result of which was that the wife suffered. Under the circumstances, the wife can very well have an apprehension that if she lived with her husband she would be criminally neglected and colossal indifference on the part of the husband would lead her one day to the grave. I am, therefore, of the opinion that the petitioner Kamta Prasad is not entitled to a. decree of restitution of conjugal rights." This finding runs counter to the findings given on the previous issue of cruelty of the husband against the wife in the two consolidated proceedings. It demolished what the trial court appears to have assiduously attempted to establish in the course of its findings on the issue of cruelty that the husband was not really guilty of"legal cruelty" but only of excusable indifference towards his wife.

The discomfited husband decided to abandon the battle for the lady whom he tried to paint, without any apparent grounds, as a veritable Helen. He did not file any appeal against the dismissal of his suit. The defeated wife did not allow the matters to rest there. She appealed to the District, Judge against the dismissal of her petition for judicial separation. The learned District Judge observed, in the course of his judgment by which he dismisses her appeal that the suit of Kamta Prasad respondent should not have been dismissed. He, however, went into the evidence relating to the alleged cruelty by the husband to the wife and held that the husband had not been proved to have been guilty of cruelly towards his wife in the eye of law, notwithstanding the fact that the finding against the husband in his suit for the restitution of conjugal rights had become final against him. The learned District Judge did not deal with the effect of the failure of the husband to appeal against the findings upon, which the suit had been dismissed.

(3.)THE appeal of the wife having been dismissed by the District Judge, she has come up in second appeal to this Court. A preliminary objection has been raised to the hearing of the second appeal on merits. It is that a proceeding under Sec. 10 of the Act of 1955 is commenced by a petition to the District Court, and not by means of the"plaint" required by O. IV R. 1 C.P.C., so that the proceeding cannot be termed"a suit". The objection is that a second appeal lies only where there is a decree by a lower appellate court, under Sec. 96 C.P.C., passed on an appeal from a decree of the court of original jurisdiction in a"suit." It is contended that the term decree is defined in Sec. 2(2) C.P.C. as an adjudication in a"suit", but it does not include decrees of matrimonial courts in proceedings under the Act of 1955.


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