Patna High Court
Raj Rani vs Harbans Singh Chhabra on 1 May, 1972
Equivalent citations: AIR1972PAT392, AIR 1972 PATNA 392, 1972 PATLJR 582 ILR (1972) 51 PAT 1003, ILR (1972) 51 PAT 1003
JUDGMENT
1. This is an appeal by the wife under Section 28 of the Hindu Marriage Act, Act XXV of 1955, (hereinafter to be referred to as the Act) against an order of judicial separation passed Under Section 10 (1) of the Act. The petition was for decree for divorce under Section 13 of the Act. That prayer has been disallowed by the Court below. Hence the husband respondent has also filed a cross-objection. The order for judicial separation has been passed both on the grounds of unchastity of the wife and desertion of the husband by her. It may be Stated here that an adjournment was granted to the appellant in the Court below subject to the payment of a cost of Rs. 100. As she did not pay the cost the case was taken up for ex parte hearing and the order passed is an ex parte one.
2. When the matter was taken up for hearing by a learned single Judge of this Court a preliminary objection was taken on behalf of the respondent that as the memorandum of appeal was not accompanied by a copy of the decree which was prepared in the court below the appeal was not maintainable. In the opinion of the learned Single Judge the question raised was of importance as there was no Bench decision of this Court on the point. He therefore, referred the matter to a Division Bench. Unfortunately the Bench decision of this Court in Antalal Gope v. Smt. Sarbo Gopain, AIR 1962 Pat 489 was not brought to the notice of the learned Single Judge.
In that case it has been held that the word "decree" in Section 13 or in any other Section of the Act is not used in the same sense as the word has been defined in the Code of Civil Procedure and that the word has been used in its dictionary sense that is to say, in the sense of a decision or an edict. The Bench has further held that a miscellaneous appeal is maintainable against an order passed under Section 13 or 10 of the Act and the Court fee payable on such an appeal is as contemplated under Article 11 of Schedule II of the Court Fees Act. Article 11 of Schedule II of the Court Fees Act provides for Court-fee on memorandum of appeal when the appeal is not from a decree or an order having the force of a decree. The Bench, therefore, held in that case that an order under the Hindu Marriage Act though it was called a decree under the Act was appealable as an order. In view of the Bench decision there is no substance in the preliminary objection.
3. Our attention was drawn by learned counsel for the respondent to a recent decision of a learned single Judge of this Court in Bankim Chandra Roy v. Smt. Anjali Roy, 1971 Pat LJR 309 = (AIR 1972 Pat 80). In that decision the question has not been expressly decided. Further the aforesaid decision in Antalal Cope's case, AIR 1962 Pat 489 was also not cited before the learned Judge. The decision in Anta Lal Gope s case being a Bench decision is binding on us and as at present advised we do not find any reason to take a view different from one taken in it.
4. On merits of the appeal Mr. S. C. Ghosh appearing for the appellant has raised the following contentions: Firstly, he has submitted that the Court below having not attempted to bring about a reconciliation between the parties as was its duty under Section 23 (2) of the Act, its order is wrong. We are not inclined to agree with the contention of the learned counsel for the appellant that for the failure on the part of the court to endeavour to bring about a reconciliation between the parties, its order is without jurisdiction. With respect we think that the view taken by a Bench of the Mysore High Court in Jivubai v. Ningappa Adriashappa Yadwad, AIR 1963 Mys 3, that failure on the part of the trial court to make endeavour to bring about reconciliation does not affect its jurisdiction to try the case and endeavour can also be made by the appellate Court is correct. In these circumstances we would not have allowed the appeal on this ground, rather we would have ourselves called upon the parties to appear before us in person and attempted to bring about reconciliation between them. But it appears that the ex parte order of the Court below also suffers from other defects. The respondent examined only himself as a witness in the Court below and it has accepted his evidence and held that he has proved the unchastity of the appellant and desertion by her for a period of 'more than 2, years. While considering the question of unchastity of the appellant the Court below has not considered the aspect whether there was any condonation of unchastity of the appellant by the respondent.
On the evidence of the respondent it is possible to take a view that he condoned the unchastity of the appellant at least till she lived with him. The finding of the Court below on the question of desertion also does not appear to be correct in law. Merely because the appellant left the home of the respondent it cannot be said that she deserted him. Apart from that Fact it must further be proved that the wife had animus deserendi at the time she left her husband's home. It has been so held in Bipinchandra Jaisingbhai v. Prabhavari, AIR 1957 SC 176. It has been contended before us by learned counsel for the respondent that animus deserendi on the part of the appellant may be presumed from the fact that she did not come back to the respondent when asked to do so The respondent in his evidence has not Stated when he actually asked the appellant to come back to him. In absence of that evidence it is not possible to hold that the appellant had deserted the respondent for two years before the filing of the petition in the Court below. The Order of the Court below has, therefore, to be set aside.
5. In the result we allow the appeal, set aside the order of the Court below and direct it to dispose of the case in the light of the observations made above and in accordance with law. On receipt of the record the Court below at first shall endeavour to bring about reconciliation between the parties. It shall ask both the husband and the wife to appear before it on a date fixed for the purpose and in case they do not appear it would be presumed that in the circumstances of the case it was not possible to bring about reconciliation. If there is no reconciliation the Court below shall allow opportunity to both the parties to lead further evidence in the case irrespective of the fact whether the appellant pays the cost of Rs, 100/- to the respondent or not. In case the appellant does not pay the cost, the respondent may realise the same by execution.
6. Since the appeal is allowed and the case is sent back no separate order need be passed on cross-objection. The Court below will now hear the whole case afresh. In the circumstances there will be no order as to costs.