GIRISHBHAI BABUBHAI RAJA Vs. HANSABEN GIRISHCHANDRA

JUDGEMENT

(1.) This is a revision application by the husband of the maintenance proceedings which were initiated by the opponentwife against this petitioner-husband. Now during the pendency of these proceedings the husband had succeeded in getting a decree for restitution of conjugal rights which would mean that the wife is under an obligation to go and stay with the husband. The right to claim maintenance from the husband ordinarily depends upon the readiness of the wife to fulfil the marital obligation under the roof of the husband. The learned Magistrate had rejected the wifes application on the ground that the husband having procured a decree for restitution of conjugal rights. The learned Addl. Sessions Judge in the wifes revision application disagreed with the trial Magistrate and granted the application and awarded Rs. 150.00 p. m. as the amount of maintenance from the date of the application namely 12 This has occasioned the present application by the husband.

(2.) The judgment of the Supreme Court in the case of Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and others A. I. R. 1978 S.C. 1807 is a clear answer to this point. In paragraph 6 of the said reported judgment Justice Krishna Iyer in his pithy and forceful expression has succinctly laid down the law as follows :

(3.) Applying that ratio of the Supreme Court judgment to the present case I find that the learned Additional Sessions Judge could not embark on an irrelevant enquiry of the nature undertaken by him in paragraph 6 of his judgment. The learned Judge thought that the wife was helpless because the husband had refused to pay alimony as ordered by the competent court of matrimonial jurisdiction and therefore the wife could not resist that suit for want of funds and ultimately the decree for restitution of conjugal rights was passed by the court on 24-6-81. The learned Judges observation herein is a little astounding. He says that simply because the respondent-husband could successfully play tricks in procuring a decree for restitution of conjugal rights without giving any opportunity to the petitioner-wife for resisting that suit. It does not give any weapons in hand to raise a defence against this petitioner for maintenance. A decree of a Civil Court binds the parties. None can go behind the decree nor even the learned Additional Sessions Judge. If the wife was aggrieved by that decree her remedy lay in knocking the doors of the court orders the appellate forum. She took that decree lying down. She persisted in her allegation against the husband that the husband was impotent and therefore she was not prepared to go and stay with him. If there was anything to be stated regarding this particular defence of her it was open to her to plead and prove the same in those proceedings initiated by the husband for restitution of conjugal rights.