KAN SINGH, J. - (1.) THIS is a husband's appeal directed against the judgment of the learned District Judge, Ajmer dated 23-12-71 dismissing the wife's petition for restitution of conjugal right under sec. 9 of the Hindu Marriage Act, 1955, hereinafter to be referred as the "act".
(2.) SINCE it was the respondent's petition that was dismissed, the question arises at the threshold of the arguments whether the husband has a right of appeal. Whereas learned counsel for the respondent contended that he has no such right, learned counsel for the appellant has canvassed that inasmuch as the judgment adversely affects the appellant-husband in that the learned Judge has found that the respondent is still the wife of the husband he has a right of appeal. The relevant facts are briefly these. The spouses belonged to the Koli community which is a scheduled caste. There was a little confusion because at some places the wife has described herself as a Rajput, but both the learned counsel are agreed that the parties are Kolis by caste. The word "rajput" may have been used on account of their sentiments for tracing their ancestry from Rajputs. They were married according to the Hindu rites on 16-2-64. Two sons were born of the wedlock. , It appears that they lived together till 5th January, 1969, but thereafter all was not well with them and they separated. There was a caste Panchayat that was convened at the instance of the father of the wife. At the meeting of the caste Panchayat there was an effort for reconciliation, but as that proved abortive, both the spouses then agreed to a divorce with mutual consent according to the custom prevalent in the community and exchanged documents embodying the divorce. The wife nevertheless filed a petition under sec. 9 of the Act for restitution of conjugal rights by the husband alleging that she had been forced to sign the deed of divorce. She further averred that the husband had without a just cause withdrawn himself from her society. The husband resisted the petition. He, inter alia, pleaded that Smt. Shankutla was no longer his wife as there had been a valid divorce between them acco-rding to the custom of the community to which they belonged. He also denied that he had withdrawn himself from the society of the wife. He challenged that it was the wife who used to desert him and lived with her parents against his wishes. He made efforts to bring her, but was not successful. The learned District Judge framed the following issues: - (1) Whether the petitioner is not the wife of the respondent ? (2) Whether the petitioner was forced to execute a mutual agreement i. e. an agreement in favour of each other purporting to be a deed of divorce as stated in para 4 of the petition ? (3) Whether the respondent has without any reasonable excuse, rhyme and reason withdrawn from the society of the petitioner as stated in para 7 of the petition ? (4) Whether a valid, voluntary and customary divorce recognised in Koli community was effected on 26 7-1970 and accordingly the petitioner and the respondent ceased to be husband and wife since them ? (5) Whether the petitioner being a willing signatory of the Divorce-cum-release deed dated 26-7-1970 is estopped from challenging the validity and propriety of the said divorce ? (6) Whether sec. 29 of the Hindu marriage Act is a bar to the maintainability of the present petition by the petitioner ? (7) To what relief is the petitioner entitled ?" Both the parties produced their evidence and on consideration of the same the learned District Judge held (1) that the wife has not been able to establish that she was forced to execute the deed of divorce, (2) he also found that there was a custom of divorce prevalent in the Koli community, (3) he also reached the conclusion that the Panchayat had made efforts at conciliation and it was only when such efforts failed that the parties executed the respective deeds of divorce in favour of each other- (4) the learned Judge also came to the conlusion that the husband had not withdrawn from the society of the wife, but it was the latter who was not living with him. The learned Judge, however, reached the conclusion that the custom of divorce, as was found to prevail in the Koli community, was not a valid one. He held that it was against public policy as also unreasonable. I may reproduce the findings of the learned Judge in his own words : "as regards issue No. 4, burden was on the respondent. Existence of custom of divorce is even admitted by the petitioner in her statement. On consideration of the evidence of the parties, it is proved that custom1 of divorce exists in the community of the parties, i. e. a wife can desert her husband with a view to marry again without her husband's consent after payment of quit money. There were some differences between the parties. Therefore, a Panchayat was called by the father of the petitioner. The Panchayat tried their best to create reaproachment, but the respondent refused to go to the petitioner's house and a deed of divorce Ex. A. 1 was executed by the petitioner. The respondent had also agreed to this divorce and obtained quit money and executed a receipt Ex. A. 1. " Having given the above findings the learned Judge embarked on the consideration of the question whether the custom of divorce was a reasonable one and not against public policy. He then observed as follows : - "now the question remains whether this custom of divorce is reasonable and not against public policy. In view of the above ruling of our own High Court, I am of the opinion that the alleged custom of divorce is not reasonable and is against public policy; therefore, the petitioner and the respondent did not cease to be husband and wife even after the execution of Ex. A. 1. Hence issue No. 2 is decided against the petitioner and issue No. 4 is decided in this manner that custom of divorce exists in the community of the parties and a divorce deed was executed by the petitioner on 26-7-1970 ; but it is not a valid custom, is unreasonable and against the public policy. The parties did not cease to be husband and wife on account of the divorce deed. " As the learned District Judge reached the conclusion that it was the wife who was not living with the husband, he dismissed her petition under sec. 9 of the Act in the following words: - "order The petition is dismissed. In view of the circumstances of the case, the parties shall bear their own costs. " It is in these circumstances that the question falls to be considered whether the husband was entitled to come in appeal when obviously the wife's petition has failed. Learned counsel for the appellant contends that the husband is affected adversely by the decision of the learned District Judge that the parties were still continuing as husband and wife and this judgment would stand against the husband if at all he wants to rehabilitate himself in married life by taking another companion. Learned counsel for the respondent-husband, on the other hand, stresses that it is the ultimate result of the case that should govern the question of appealability of the order at the instance of a party in whose favour the order is passed and not the decision on any particular issue that may have arisen in the case. Learned counsel for the respondent maintains that the decision of any issue though against the party would not be adversely affecting him for the reason that it cannot be res judicata.
(3.) LEARNED counsel for the appellant has placed reliance on a number of cases, such as,jamnadas vs. Udey Ram (l), Union of India vs. Pearl Hosiery Mills (2), Shanti Lal vs. Farid Khan (3), Suraj Bakash vs. Munnu Lal (4), Ebrahim Abaobakar vs. Cus-todin General (5) and Edamma vs. Hussainappa (6 ). On the other hand, learned counsel for the respondent has placed reliance on Grace Hannal Wingmore vs. Arthur Clement Wingmore (7), Ran Bahadur Singh vs. Lucho Koer (8), Midnapur Zamindari Go Ltd. vs. Naresh Narayan (9), Ali Ahmad vs. Amarnath (lo), Asa Bai vs. Prabhulal (11), Commissioners of Calcutta Port vs. Bhairadidram (12), Mathurabai vs. Ram Kishana (13), K. Publishing House vs. Tra-vancore Cochin Government (14) and Sadhu Ram vs. Mohammad (15 ). To reinforce his arguments learned counsel for the appellant also invited attention to sec. 28of the Act and submitted that this being a case under the Hindu Marriage Act will be governed by this special provision which enables the filing of an appeal against every decree or order that may have been passed under the Act. In other words, sec. 28 is much wider than sec. 96 Civil Procedure Code under which appeals are filed in civil cases. Learned counsel placed reliance on Sarla Devi vs. Balwan Singh (16), P. G. Jairath vs. Amrit Jairath (17), Kutumba Rao vs. Sesharatna-mamba (18) and Rukmani Bai vs. Kishanlal (19 ). It is axiomatic that the right of appeal is a creature of statute. The party has, therefore, to show that he has a right of appeal against any particular decree or order. Then it has to be further shown that the decree or order adversely affects the party. I may refer to some of the cases cited by learned counsel on either side as may be illustrative of the view propounded by them. ;