Punjab-Haryana High Court
Smt. Maya Devi vs Kailash Chander on 17 December, 2013
Author: Paramjeet Singh
Bench: Paramjeet Singh
-1-
Civil Revision No.1571 of 2006
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Revision No.1571 of 2006
Reserved on 22.10.2013
Date of decision: 17.12.2013
Smt. Maya Devi
....Petitioner
Versus
Kailash Chander
....Respondent
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether Reporters of the local papers may be allowed to see
the judgment ? Yes
2) To be referred to the Reporters or not ? Yes
3) Whether the judgment should be reported in the Digest ? Yes
Argued by: -
Mr. S.R. Hooda, Advocate, for the petitioner.
None for the respondent.
*****
PARAMJEET SINGH, J.
Instant revision petition has been filed by petitioner- wife/decree-holder for quashing the order dated 08.12.2005 passed by learned Additional District Judge, Sonepat, whereby the application under Sections 47 and 51 and Order 21 Rule 32 CPC read with provisions of Hindu Marriage Act (for short 'HMA') for recording satisfaction of the decree passed in favour of the petitioner, filed by respondent-husband/judgment-debtor, has been allowed.
The short questions involved in the present revision petition are as under: -
"1. Whether the decree under Section 9 of the Hindu Singh Ravinder 2014.01.06 11:52 I attest to the accuracy and integrity of this document Chandigarh -2- Civil Revision No.1571 of 2006 Marriage Act (hereinafter referred to as 'the Act') can be got executed by the judgment-debtor and consequential satisfaction of the decree for restitution of conjugal rights under Order 21 Rules 32 and 33 CPC can be recorded?
2. Whether in the present case recording of the decree as satisfied is perverse and not sustainable in the eyes of law?
Brief facts of the case are that petitioner - Smt. Maya Devi filed a petition under Section 9 of HMA for restitution of conjugal rights.
The said petition was allowed on 10.01.2003 and a decree for restitution of conjugal rights was passed in favour of the petitioner. When petitioner filed an execution application for recovery of arrears of maintenance, then the respondent - Kailash Chander/judgment-debtor filed an application before the learned Additional District Judge, Sonepat, for recording satisfaction of decree passed under Section 9 of the Act in favour of the petitioner. The respondent averred in the application that after passing of the decree for restitution of conjugal rights, he waited for arrival of his wife i.e. the present petitioner for 15 days but she did not turn up to her matrimonial house. Thereafter respondent/judgment-debtor along with his grandfather Kirpal Singh and other persons went to the house of the parents of the petitioner at village Kalupur and asked the petitioner to accompany the respondent but she refused. They came back and again the petitioner was requested to accompany the respondent and take care of the children but she did not bother. It was alleged in the execution application that Singh Ravinder 2014.01.06 11:52 I attest to the accuracy and integrity of this document Chandigarh -3- Civil Revision No.1571 of 2006 respondent/judgment-debtor was ready and willing to keep the petitioner with him as his wife. Instead of joining the respondent she filed an application under Section 125 Cr.P.C. for maintenance just to harass the judgment-debtor. Thereafter the application was presented by the judgment-debtor with a request for recording satisfaction of the decree passed under Section 9 of HMA.
On notice, the petitioner appeared before the executing Court and contested the application by filing reply to the effect that her husband/respondent/judgment-debtor is a person of bad habits. He used to beat her. Neither the respondent nor his grandfather or any other person of his family went to her village as alleged and the execution application has been filed on false grounds just to frustrate the petitioner's right of maintenance and even the maintenance to the extent of Rs.11800/-, which was awarded by the Court at the time of deciding the petition under Section 9 of the Act, was not paid to the petitioner. It was also specifically pleaded that respondent/judgment-debtor had contracted a second marriage with Jai Wanti and it has become difficult for the petitioner to live with the respondent. Coupled with his behavior, she has reasonable excuse to withdraw from his society and the stand taken by the respondent to the contrary was controverted by the petitioner/decree-holder.
In pursuance of the pleadings of the parties, executing Court framed the following issues: -
"1. Whether the decree of restitution of conjugal rights in Singh Ravinder 2014.01.06 11:52 I attest to the accuracy and integrity of this document Chandigarh -4- Civil Revision No.1571 of 2006 favour of D.H. has been satisfied? OPJD
2. Whether the present application is not maintainable in the present form? OPDH
3. Relief."
In order to support her claim, petitioner appeared as RW-1 and also examined Jogi Ram and Raj Kumar as RW-2 and RW-3, respectively. Respondent examined himself as AW-1 and also examined his grandfather Kirpal Singh as AW-2 and mother Smt. Pataso as AW-3.
Learned executing Court after considering the evidence on record, recorded a finding against the petitioner and decided issue No.1 in favour of the respondent/judgment-debtor and issue No.2 was also decided against the petitioner and in favour of the respondent. Ultimately a finding was recorded under Order 21 Rule 32 CPC with regard to satisfaction of decree for restitution of conjugal rights.
I have heard learned counsel for the petitioner and perused the record.
Learned counsel for the petitioner vehemently contended that the findings recorded by learned executing Court are not sustainable in the eyes of law and are perverse.
Learned executing Court has recorded following finding: -
".....It is clear from the statement of Maya Devi that she is not interested to accompany her husband Kailash Chander as he has contracted a second marriage. But the fact of second marriage is no ground for disobeying the decree for restitution of conjugal rights. If her husband has effected a second marriage, then she can get him prosecuted U/s 498 Singh Ravinder 2014.01.06 11:52 I attest to the accuracy and integrity of this document Chandigarh -5- Civil Revision No.1571 of 2006 IPC but she has to obey the decree. Even she has not followed the instruction or the order issued by the commanding officer of the J.D., who has also given an assurance for keeping her properly and nicely under the safeguard of Dy. Commandant. Thus from this, inference can be drawn that she is not willing to accompany her husband intentionally."
Learned counsel for the petitioner vehemently contended that in view of specific finding regarding second marriage by the respondent, the impugned judgment is not sustainable. Contracting of second marriage amounts to cruelty, if not physical certainly mental cruelty. Learned counsel further contended that second marriage itself is a reasonable cause for withdrawal from the society of the husband. In fact, by his own act and conduct the respondent made it impossible for petitioner to obey the decree. Being himself at fault decree could not have been recorded as satisfied at his instance. The observation of the learned executing Court that petitioner has remedy under Section 498 IPC is erroneous as it is not the remedy which will lead to satisfying the decree for restitution of conjugal rights. The order of the commanding officer and giving assurance by him is not sufficient for the decree- holder to say that decree stood satisfied rather the judgment-debtor is at fault and recording of decree as satisfied at his instance is perverse and not sustainable in the eyes of law.
None appeared on behalf of the respondent to address the arguments.
I have considered the contentions raised by learned counsel for Singh Ravinder 2014.01.06 11:52 I attest to the accuracy and integrity of this document Chandigarh -6- Civil Revision No.1571 of 2006 the petitioner.
Admittedly, the decree for restitution of conjugal rights was in favour of the petitioner and the execution application was filed by the judgment-debtor to record its satisfaction. Admittedly, after the passing of the decree there was no resumption of conjugal rights between the parties. There appears to be no direct provision in the Code of Civil Procedure wherein the judgment-debtor can seek execution of decree. The general notion is if a decree is passed against a party then the decree-holder can seek enforcement of the same against the judgment- debtor.
Before I deal with the contentions raised by learned counsel for the petitioner, it would be appropriate to reproduce some of the relevant provisions of HMA and Code of Civil Procedure.
Section 9 of HMA reads as under:-
"9. Restitution of conjugal rights. - 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."
Section 2(2) CPC defines the decree, which reads as under: -
"decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either Singh Ravinder 2014.01.06 11:52 I attest to the accuracy and integrity of this document Chandigarh -7- Civil Revision No.1571 of 2006 preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include -
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default."
Section 2(3) CPC reads as under: -
"decree-holder means any person in whose favour a decree has been passed or an order capable of execution has been made."
Section 2(9) CPC defines the judgment, which reads as under:
"judgment means the statement given by the Judge on the grounds of a decree or order."
Section 2(10) CPC reads as under: -
"judgment-debtor means any person against whom a decree has been passed or an order capable of execution has been made."
Order 21 Rules 32 and 33 CPC, which deal with the decree for specific performance, for restitution of conjugal rights or for injunction, reads as under: -
"32 . Decree for specific performance for restitution of conjugal rights, or for an injunction-- (1) Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract or for an injunction by his detention in the civil prison, or by the Singh Ravinder 2014.01.06 11:52 I attest to the accuracy and integrity of this document Chandigarh -8- Civil Revision No.1571 of 2006 attachment of his property, or by both.
(2) Where the party against whom a decree for specific performance or for an injunctions been passed is a corporation, the decree may be enforced by the attachment of the property of the corporation or, with the leave of the Court by the detention in the civil prison of the directors or other principal officers thereof, or by both attachment and detention.
(3) Where any attachment under sub-rule (1) or sub-rule (2) has remained in force for six months if the judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold;
and out of the proceeds the Court may award to the decree- holder such compensation as it thinks fit, and shall pay the balance (if any) to the judgment-debtor on his application. (4) Where the judgment-debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or here, at the end of six months from the date of the attachment, no application to have the property sold has been made, or if made has been refused, the attachment shall cease. (5) Where a decree for the specific performance of a contract or for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the processes aforesaid, direct that the act required to be done may be done so far as practicable by the decree-holder or some other person appointed by the Court, at the cost of the judgment-debtor, and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree. 33 . Discretion of Court in executing decrees for restitution of conjugl rights-- (1) Notwithstanding anything in rule 32, the Court, either at the time of passing a decree against a Singh Ravinder 2014.01.06 11:52 I attest to the accuracy and integrity of this document Chandigarh -9- Civil Revision No.1571 of 2006 husband for the restitution of conjugal rights or at any time afterwards, may order that the decree shall be executed in the manner provided in this rule.
(2) Where the Court has made an order under sub-rule (1), it may order that, in the event of the decree not being obeyed within such period as may be fixed in this behalf, the judgment-debtor shall make to the decree-holder such periodical payments as may be just, and, if it thinks fit, require that the judgment-debtor shall, to its satisfaction, secure to the decree-holder such periodical payments.
(3) The Court may from time to time vary or modify any order made under sub-rule (2) for the periodical payment of money, either by altering the times of payment or by increasing or diminishing the amount, or may temporilay suspend the same as to the whole or any part of the money so ordered to be paid, and again review the same, either wholly or in part as it may think just.
(4) Any money ordered to be paid under this rule may be recovered as though it were payable under a decree for the payment of money."
A combined reading of the abovesaid substantive as well as procedural provisions relating to the grant of relief of restitution of conjugal rights by the Courts makes it clear that decree for conjugal rights granted under Section 9 of HMA can be enforced under Order 21 Rules 32 and 33 CPC by applying various types of sanctions, including financial sanctions against the disobeying party. Additionally, always a Court can enforce its decree through its contempt powers. The judicial committee of the privy council in Moonshed Buzloo Rhueem v. Shumsoon Nissa Begum, (1867) 11 Moo Ind App 551, held that a suit Singh Ravinder 2014.01.06 11:52 I attest to the accuracy and integrity of this document Chandigarh -10- Civil Revision No.1571 of 2006 for restitution of conjugal rights filed by a Muslim husband was rightly filed as a suit for specific performance, it is on the same lines that Order 21 Rule 32 of the Code of Civil Procedure speaks of a decree granted for restitution of conjugal rights as a decree of specific performance or restitution of conjugal rights. Conjugal rights connote two ideas. (A) "the right which husband and wife have to each other's society and (B) "marital cohabitation". An offer by the husband to live under the same roof with his wife, each party being free from molestation by the other was held not an offer to matrimonial cohabitation. In other words, sexual cohabitation is an inseparable ingredient of a decree for restitution of conjugal rights. It follows, therefore, that a decree for restitution of conjugal rights passed by a civil Court extends not only to the grant of relief to the decree holder to the company of the other spouse, but also embraces the right to have marital cohabitation. Relief of restitution of conjugal rights fraught with such serious consequences to the concerned individual granted under Section 9 of the Act enables the decree-holder through application of financial sanctions provided by Order 21 Rules 32 and 33 CPC to have sexual cohabitation with an unwilling party even by imprisonment in a civil prison. Non-compliance of the unwilling party to such a decree is sought to be procured, by applying financial sanctions by attachment and sale of the property of the recalcitrant party. But the purpose of a decree for restitution of conjugal rights in the past as it in the present remains the same which is to coerce through judicial process the unwilling party to have marital Singh Ravinder 2014.01.06 11:52 I attest to the accuracy and integrity of this document Chandigarh -11- Civil Revision No.1571 of 2006 cohabitation against that person's consent and freewill with the decree- holder.
I have my own doubts that decree of restitution of conjugal rights thus enforced offends the inviolability of the body and the mind subjected to the decree and offends the integrity of such a person and invades the marital privacy and domestic intimacies of such a person, which will be dealt with in appropriate proceedings.
Human society rests on two basic institutions i.e. family and marriage. Marriage is often regarded as a primary institution in our society. Certain norms and rules govern the society and with the passage of time develop into customs and usages. Under Hindu Law, marriage is a union imposing upon each of the spouse certain marital duties and gives to each of them certain legal rights. The necessary implication of the marriage is that parties will live together. Each spouse is entitled to comfort-consortium of each other. After solemnization of marriage, if either of the spouse, without reasonable excuse, withdraws himself or herself from the society of the other, then aggrieved party has a legal right to file petition under Section 9 of HMA. Non-compliance of the decree granted results into constructive destruction on the part of erring spouse. The decree of restitution of conjugal rights can be enforced by attachment of the property/financial sanctions and if the party still does not comply, the Court may punish him or her for contempt of Court but under no circumstances the Court can enforce the erring spouse to consummate the marriage. As stated by Paras Diwan, the remedy of Singh Ravinder 2014.01.06 11:52 I attest to the accuracy and integrity of this document Chandigarh -12- Civil Revision No.1571 of 2006 restitution of conjugal rights was neither recognized by the Dharmashastra nor did the Muslim law made any provisions for it, it has its roots in feudal England where the marriage was considered as a property deal and wife was part of man's possession like other chattels. The concept of restitution of conjugal rights was introduced in India in the case of Moonshee Buzloor Ruheem (supra) where such actions were regarded as considerations of specific performance. Now-a-days the remedy is available under the Hindu Law under Section 9 of HMA.
In the light of these facts, now I would proceed to answer the questions set at the outset .
Re: question No.1 A decree for restitution of conjugal rights under Section 9 of the Act is a mutually obligatory decree; purpose being to get the spouses join to lead conjugal rights. The fundamental rule of matrimonial law is that the spouse is entitled to the society, comfort-consortium of the other spouse. When either spouse has abandoned or withdrawn from the society of the other spouse without a reasonable excuse or just cause then the Court can grant a decree for restitution of conjugal rights and the same can be executed as contemplated under Order 21 Rules 32 and 33 CPC.
In M.P. Shreevastava vs. Mrs. Veena, AIR 1967 SC 1193 the Hon'ble Supreme Court had the occasion to consider the controversy somewhat similar to one involved in instant revision wherein it considered the provisions of Section 47 and Order 21 Rule 2 and Order Singh Ravinder 2014.01.06 11:52 I attest to the accuracy and integrity of this document Chandigarh -13- Civil Revision No.1571 of 2006 41 Rule 2 CPC that had arisen from an appeal under the Special Marriage Act. It would be appropriate to mention that Section 9 of the Act and Section 22 of the Special Marriage Act, 1954 are peri materia. In that case, the respondent-wife/judgment-debtor approached the Court for recording of satisfaction of decree under Section 47 read with Order 21 Rule 2 CPC. The District Judge, Delhi, held that the decree for restitution of conjugal rights against the respondent stood satisfied and ordered that it be recorded that the decree was satisfied. The husband went in appeal and the High Court confirmed the order of the District Judge. Letters Patent filed by the husband also failed and thereafter the husband/decree-holder appealed to the Hon'ble Supreme Court, which was ultimately dismissed. In that case the wife was respondent/judgment-debtor; the decree was passed ex parte in favour of the husband/decree-holder but the execution was filed by the wife for recording satisfaction of the decree, which was allowed upto Hon'ble Supreme Court. From the ratio of law laid down by Hon'ble Supreme Court, it is clear that party against whom a decree for restitution of conjugal rights is passed can make application to the executing Court to comply with the decree. In view of the law laid down by Hon'ble Supreme Court as well as this Court, it is clear that either party can file execution application for recording satisfaction of the decree. Once the decree for restitution of conjugal rights is passed and one party has departed away from the decree then the other spouse can have liberty to get the decree satisfied in its proper way. Accordingly, it is held that the Singh Ravinder 2014.01.06 11:52 I attest to the accuracy and integrity of this document Chandigarh -14- Civil Revision No.1571 of 2006 judgment-debtor has also right to get recorded that the decree stood satisfied.
Re: question No.2 Now I will deal with the question whether in the present case findings recorded by the executing Court regarding recording satisfaction of decree at the instance of the husband are sustainable in the eyes of law or not.
Finding of the executing Court recapitulated above clearly indicates that even if the husband has contracted the second marriage then the wife was obliged to comply with the decree under Section 9 of the Act. Once there is sufficient evidence that respondent- husband/judgment-debtor has contracted second marriage with Jai Wanti, then burden of proof "whether excuse for withdrawal from the society is a valid reason" shall be on the person who asked for satisfaction of decree. This is clear from Section 23(1) of the HMA and the burden certainly shifts on the husband. The word "society" here corresponds to cohabitation and "withdrawal" signifies cessation of that cohabitation bringing to end the consortium. Once there is second marriage by the husband, it certainly amounts to mental cruelty, if not physical, which is one of the grounds for divorce; as such is a reasonable excuse to withdraw from the society of the husband and the observation of the executing Court that petitioner should have proceeded under Section 498 IPC, is not a substitute for that. This is an independent remedy. When the husband is contracting second marriage, he is Singh Ravinder 2014.01.06 11:52 I attest to the accuracy and integrity of this document Chandigarh -15- Civil Revision No.1571 of 2006 certainly causing mental cruelty to wife and is apparently totally unresponsive towards his matrimonial obligations. Such a behaviour is sufficient which may warrant withdrawal from the society by wife. The basic defence for withdrawal is based on the principle which lies in the concept of "reasonable excuse". I hold that the petitioner has withdrawn from the society of her husband for a valid reason and the findings recorded by the executing Court are perverse in so far as it directed petitioner to join company of respondent and recorded decree as satisfied at the instance of faulting party who by his own conduct made the compliance of decree impossible for the decree-holder. Such findings of the executing Court have the effect of giving undue benefit to the erring spouse of his own fault. Bigamy is prohibited under law and is in violation of the statutory provisions. In the circumstances of the case, wife could not have been compelled to live with the husband and it would have been unjust and unreasonable to do so and would amount to inequitable order for recording satisfaction of the decree. "One can take a horse to the water but one cannot make him to drink" is a famous proverb and the provision for restitution of conjugal rights under the Act as well as the Special Marriage Act seem to be akin to that. It is to be noted that Court cannot compel the defaulting spouse to physically return to the comfort-consortium of the decree-holder spouse. In view view of the above discussion, the findings of the trial Court are result of misreading of the provision of law and are as such perverse.
The very important feature of the restitution of conjugal rights Singh Ravinder 2014.01.06 11:52 I attest to the accuracy and integrity of this document Chandigarh -16- Civil Revision No.1571 of 2006 is in the nature of remedy aimed at preserving the marriage not disrupting it. The Section appears to serve the purpose of prevention of the breakup of marriage and can be termed as an attempt to save the marriage. The basic spirit of Section 9 of HMA is promoting reconciliation between the parties and maintenance of matrimonial life and ultimately protecting the society from degenerating but final decision always rests with the parties either to obey such decree to continue with the matrimony or not.
In view of findings on second question, revision petition is allowed and the impugned order is set aside.
No order as to costs.
(Paramjeet Singh) Judge December 17, 2013 R.S. Singh Ravinder 2014.01.06 11:52 I attest to the accuracy and integrity of this document Chandigarh