PRANJIVAN AVICHAL PITHADIA Vs. BAI DHIRAJBEN BHAGWANJI

JUDGEMENT

(1.) This appeal is directed against the judgment and decree passed by Mr. V. V. Bedarkar, District Judge, Rajkot in Civil Appeal No. 62 of 1969 by which he reversed the decree of dissolution of marriage passed by the learned trial Judge in Hindu Marriage Petition No. 7 of 1968. The facts giving rise to this appeal to state briefly are that the appellant husband married according to the Hindu rites the respondent on or about March 6, 1961 at village Dhrol. After marriage the parties cohabited at Rajkot and the respondent had a son by the appellant on Nov. 4, 1962. According to the appellant the respondent left his house and went to her parents' house. Finally she came to his house in Jan. 1965 and lived with him upto April 25, 1965. Thereafter she had not come to his house inspite of his several attempts to call her. The appellant, therefore, filed Hindu Marriage Petition No. 260 of 1965, claiming a decree for restitution of conjugal rights. In the said petition an order granting restitution of conjugal rights was passed on Feb. 28, 1966 and the decree in pursuance of the judgement was signed on March 28, 1966. The respondent did not abide by the decree for a period of 2 years and, therefore, the appellant husband filed Hindu Marriage Petition No. 7 of 1968. In the Court of the Civil Judge, Senior Division, Rajkot for a decree of dissolution of marriage under the provisions of section 13(1A) (ii) of the Hindu Marriage Act (hereinafter referred to as the Act). The respondent filed written statement, Ex. 9, contending that the appellant had made no attempt to call her back to his house. According to her she did not know about the decree and that after Feb. 28, 1966 the appellant had neither called her nor given her any notice for returning to his house and thus did not desire restitution of conjugal rights. She finally contended that the appellant had no cause of action and so was not entitled to a decree for divorce. The learned trial Judge decreed the plaintiff's suit holding that the respondent had not abided by the decree of restitution of conjugal rights for a period of 2 years and that there was no obligation on the husband after the said decree was passed to call upon the wife to come to stay with him in pursuance of the said decree. Being aggrieved by the said judgment and decree the respondent wife preferred Civil Appeal No. 62 of 1969 in the Court of the District Judge, Rajkot, who reversed the decree granting divorce passed by the learned Trial Judge holding that, even though the decree for restitution of conjugal rights was passed in favour of the husband, it was necessary for him to inform the wife by notice that there was such a decree, that she should go and reside with him to satisfy the decree and this was necessary in order to show that he had made all bona fide attempts for restitution for which he had filed the petition. According to the learned Judge admittedly the appellant husband had not acted in that manner and, therefore, was not entitled to the decree for divorce. It is this judgment and decree which is challenged in this appeal.

(2.) In support of the decree which is passed by the learned appellate Judge, Mr. Shah appearing for the respondent had raised certain contentions which require first to be dealt with because, if any one of them is accepted, the decree passed by the learned appellate Judge has to be maintained. The first contention of Mr. Shah was that the learned trial Judge erred in not allowing the respondent to produce documents annexed with Exh. 24. If the said documents were permitted to be produced and proved in the case the resumption of cohabitation after the decree of restitution of conjugal rights surely would have been established. Mr. Shah also argued that, when the plaintiff husband was in the witness box, certain questions were put to the husband to prove that the respondent wife had actually cohabited with the husband for a week in the year 1967, i.e., after the decree of restitution of conjugal rights was passed. But these questions were not allowed to be put with the result that the relevant evidence came to be gagged. Now both these points were raised before the learned trial Judge. The learned trial Judge came to the conclusion that application, Ex. 24, to produce the documents was made at a very late stage of the proceedings and there was no affidavit on the record to support the say of the wife, that those documents could not have been produced in the case earlier. He therefore, rejected the application Exhibit 24. So far the questions put to the plaintiff-husband during the course of cross examination regarding cohabitation in the year 1967 are concerned, the learned Judge came to the conclusion that a new case was sought to be made out by the wife inasmuch as there was no pleading in respect thereof. The learned appellate Judge had also considered the two objections. The learned appellate Judge observed as under:-

(3.) It was next contended by Mr. Shah that under section 13 (1A) of the Act the appellant husband could have filed an application for divorce on the ground that there had been no restitution of conjugal rights between the parties provided two years or upward after he passing of the decree for restitution of conjugal rights had elapsed without any cohabitation. In the present case, contended Mr. Shah, the date on which the decree is signed is March 28, 1966 and the period of two years has to be counted from that date and if so counted the application for divorce is premature because the same was filed on March 2, 1968. Now there is no substance in this argument. Admittedly the judgent in the suit for restitution of conjugal rights was signed on Feb. 28, 1966 and the decree in pursuance of the judgment was signed on March 28, 1966. But it is necessary to note the provisions of Order 20 Rule 7 of the Code of Civil Procedure which provides, so far relevant, that the decree shall bear date the day on which the judgment is pronounced. Under the provisions of this rule the decree comes into existence on the date of the judgment though it is signed later. Therefore, it is evident that the time of two years is to be counted from Feb. 28, 1966 and, if counted in that manner, the application for divorce cannot be treated as premature.