OMA Vs. BANSHILAL
LAWS(RAJ)-1967-8-5
HIGH COURT OF RAJASTHAN
Decided on August 02,1967

OMA Appellant
VERSUS
BANSHILAL Respondents

JUDGEMENT

- (1.) THIS is an appeal under sec. 28 of the Hindu Marriage Act, 1955 read with sec. 96 C. P. C. against the judgment and decree of the learned District Judge, Jodhpur, dated 9th October, 1965.
(2.) THE facts giving rise to it are as follows - THE appellant was married to respondent Banshilal on 5-5-55 at Jodhpur. Unfortunately, the marriage did not prove to be a happy one and the respondent had to bring a suit for restitution of conjugal rights against the appellant. That suit was contested by the appellant but eventually decreed on 17th January, 1962. THE appellant filed an appeal in this Court but that was also dismissed on 23-7-65. During the pendency of the appeal, the respondent presented an application under sec. 13 of the Hindu Marriage Act, 1955 in the court of the learned District Judge, Jodhpur, on 19-2-64. It was averred by him that the appellant had failed to satisfy the decree for conjugal rights for more than two years and, therefore, it was prayed that a decree for divorce may be given in his favour. This application was also contested by the appellant, but without success. The learned District Judge allowed the respondents application and passed a decree for divorce on 9-10-65. It is against that judgment and decree that the present appeal has been preferred. Learned counsel for the appellant has raised four contentions in this Court and they may be taken up in seriatim. It is contended, in the first instance, that the period of two years, according to sec. 13 (1) (ix) of the Hindu Marriage Act, 1955, should have been computed from the date of the appellate decree, that is, 23-7-65 and that so long as the appeal was pending, the respondent's application was not maintainable and should have been dismissed on that ground alone. In support of his contention, learned counsel has referred to Iswar Chander Ahluwalia vs. Shrimati Pomilla Ahluwalia (1 ). We have given our due consideration to this argument and it may be observed atonce that it is devoid of any force. Sec. 13 (1) (ix), as it stood on the date of the application, that is, 19 2-64, ran as follows - "sec. 13 (1) (ix) - Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party. . . . . . . . has failed to comply with a decree for restitution of conjugal rights for a period of two years or upwards after the passing of the decree. " It may be noted here that by the Hindu Marriage (Amendment) Act, 1964 (No. 44 of 1964), clause (viii) and (ix) of sec. 13 of the Hindu Marriage Act, 1955, were amended and sec. 13 (1-A), as amended now stands as follows in place of clause (viii) and (ix) - "sec. 13 (1-A) - Either party to a marriage, whether solemnised before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground - (i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of two years or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties, or (ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of two years or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties. " It would appear that so far as the period of two years after the passing of the decree for restitution of conjugal rights is concerned, there is no change. It is obvious from the language of clause (ix) as also from the language of clause (ii) of the amended sec. 13 (1-A) that the period of two years may be computed from the passing of the decree for restitution of conjugal rights. It is admitted by the appellant's learned counsel that there was no change in the decree of the trial court after it was passed on 17-1-62 because the appellate court only dismissed the appeal and, therefore, the decree of the trial court stood intact. The appellant was not entitled to extension of period simply because she had filed an appeal in this Court. She ought to have satisfied the decree for restitution of conjugal rights within a period of two years computed from the date of the decree of the trial court if she wanted the marital relations to continue. The authority cited by the appellant's learned counsel is of no help to the appellant. In Is war Chander Ahluwalia's case, the husband had obtained a decree for restitution of conjugal rights on 20-3-57. It appears that the wife did not contest the suit. On the other hand, it was pleaded by her that she had no objection to the passing of the decree for restitution of conjugal rights and the decree was granted accordingly. After the decree was passed, the husband presented an application for annulment of marriage under sec. 12 (l) (c) of the Hindu Marriage Act, 1955. He was, however, not successful in that application and thereafter he presented another application on 16-4-59 for a decree for divorce under sec. 13 (l) (ix) of the said Act. In those circumstances, it was held that it was quite impossible for the wife to make any effort to comply with the decree for restitution of conjugal rights because so long as the husband was proceeding with the petition for declaration about the nullity of the marriage on the ground of fraud against her, she could not comply with the decree. It was, therefore, held on the particular facts of that case that the husband ought to have waited for a period of two years after the dismissal of his application for getting the marriage declared as a nullity. It is very clear that in the case cited by the appellant's learned counsel the husband was not serious about the restitution of conjugal rights with his wife. The wife never contested the suit for restitution of conjugal rights and when the decree was granted, the husband himself tried to avoid the satisfaction of the decree by presenting an application for getting the marriage declared a nullity. Since it was the husband who prevented the wife from satisfying the decree, the Court was justified in holding that he should have waited for two years after the dismissal of his application under sec. 12 (1) (c) of the Act. In the present case, there is nothing on record to show that the respondent was not serious to get the decree executed against the appellant or that he had put any kind of impediment in the way of his wife to satisfy the decree. The learned District Judge was, therefore, quite correct in computing the period of two years from the date of the decree of the original court and not from the date of the appellate decree. The next contention raised by the appellant's learned counsel is that the learned District Judge has committed an error in referring to sec. 13 (1) (ix) of the Hindu Marriage Act, 1955, as it already stood amended by Amendment Act No. 44 of 1964 before the date of the judgment and decree under appeal. Technically, this argument is correct to the extent that the learned District Judge ought to have referred to and taken into consideration sec. 13 (1a) of the Amendment Act No. 44 of 1964 since the amendment had come into force before the date of the judgment. Nothing, however, turns upon his failure to refer to the amended section because the amended section does not help the appellant in any way. The amended section only enables either party to a marriage to present the application otherwise the position remains unchanged so far as the present case is concerned. The third contention raised by the appellant's learned counsel is that his client had satisfied the decree on 9 5-64 and subsequent days and, therefore, the decree of the learned District Judge should be set aside. It appears from the judgment of the learned District Judge that he has dismissed this contention of the appellant on the ground that in the written statement filed by her it was not pleaded if she had gone to live with her husband on 9-5-64 or that she stayed with him on subsequent days. It was also pointed out that there was no issue on that point, and, therefore, even if some evidence was introduced during the course of trial, it could not be looked into. Reliance was placed on the observations of their lordships of the Privy Council in Siddik Mahomed Shah vs. Mt. Saran (2 ). Learned counsel for the appellant has not been able to point out if it was pleaded by his client in her written statement that she had gone to live with her husband on 9-5-64 or any other day thereafter. It is also admitted that no issue was framed on this point. Learned counsel has, however, referred to Nagubai Ammal vs. V. B. Shama Rao (3 ). In that case their lordships after referring to the Siddik Mahomed Shah's case, observed as follows: "the true scope of this rule is that evidence let in on issues on which the parties actually went to trial should not be made the foundation for decision of another and different issue, which was not present to the minds of the parties and on which they had no opportunity of adducing evidence. But that rule has no application to a case where parties go to trial with knowledge that a particular question is in issue, though no specific issue has been framed thereon, and adduce evidence relating thereto. " In the present case, the appellant had examined herself and also produced two witnesses DW 2 Fatehraj and DW 3 Murlidhar. The learned District Judge has disbelieved the evidence of all the three witnesses and, therefore, it is clear that his reference to the case of Siddik Mahomed Shah was only in the nature of academic discussion. He has, in fact, complied with the observations of their lordships of the Privy Council as explained in Nagubai Ammal vs. V. B. Shama Rao referred to above. We have also looked into the evidence of the appellant as also of her two witnesses and we agree with the learned District Judge that this evidence does not advance the appellant's case. Even if her statement is believed that she went to the respondent's house on 9-5-64 since her father-in-lew had died shortly before that date, it is noteworthy that the respondent had presented an application under sec. 13 of the Hindu Marriage Act for obtaining the decree of divorce on 19-2-64, that is, long before the appellant's alleged visit to his house and after the lapse of a period of two years since the date of the decree for restitution of conjugal rights. Her visit to her husband's house after a period of two years from the date of the decree for restitution of conjugal rights could not defeat the rights which had already accrued in favour of the respondent. That visit was therefore of no avail to the appellant and the decree passed by the court below cannot be set aside on that point. It is also urged by the appellant's learned counsel that her client's appeal in this Court would have become infructuous if she had gone to her husband before the decision of that appeal. There is no force in this argument because if she did not satisfy the decree for restitution of conjugal rights and waited for the decision of the appeal, she did so at her own risk. If she wanted to avoid the legal consequence arising out of the provisions of sec. 13 of the Hindu Marriage Act, the proper course for her was to satisfy the decree or to press for early hearing of the appeal. Lastly, it has been urged that the learned District Judge ought to have granted alimony to the appellant under sec. 25 of the Hindu Marriage Act. It is urged by the learned counsel for the respondent that this objection should not be allowed to be raised because no application under sec. 25 of the said Act was presented before the learned District Judge. It is urged by the appellant's learned counsel that an oral request was made on behalf of her client, but learned counsel for the respondent says that the appellant's present learned counsel never appeared in the Court of the learned District Judge, that, on the other hand, he was defending the respondent and that no such request was made even orally in that court. We find that there is no mention about such an oral request in the judgment of the learned District Judge and, therefore, there is no force in the objection raised at this stage. There is nothing on record to show as to what was the financial condition of the appellant and the respondent and without there being any data on the record, we find ourselves unable to decide this point. There is thus no force in this appeal and it is hereby dismissed with costs. . ;


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