NANDITA DE Vs. MONORANJAN DE

JUDGEMENT

(1.) THE husband brought a suit for restitution of conjugal rights in 1964 and got a decree on 11. 1. 65. On 10th of April, 1967 the husband filed an application for divorce under section 13 of the Hindu Marriage act on the ground that two years had already passed since the passing of the decree for restitution of conjugal rights but the wife failed to comply with the said decree for the said period. The wife previously contested the suit for restitution of conjugal rights. She also contested the suit for divorce.

(2.) IN the present suit the wife's case is that in obedience to the decree for restitution of conjugal rights, she with her daughter went to the house of the husband at 406, Dum Dum Park on 21. 5. 65 to live there, but the husband and his parents refused to allow the wife to stay and to live with the husband at his said residence. That by a verified petition dated the 8th of June, 1965, a copy of which was served upon the Advocate of the husband, the wife intimated all the above facts to the learned 7th Court of the Additional district Judge at Alipore which passed a decree for restitution of conjugal rights. It is her positive case that she has been prevented by the husband from going back to him and live with him and that being so the husband cannot take the benefit of his own wrong and claim divorce. That the wife was always and is still willing to live with the husband. It is also the wife's case that immediately after the decree for restitution of conjugal rights, she wrote to her husband two letters one on 25. 1. 65 and the other on 2. 8. 65, but none of the letters was replied to by the husband. The learned Additional District Judge found that as two years elapsed from the date of the passing of the decree for restitution of conjugal rights and as it was in evidence that there was no resumption of conjugal relationship between the husband and the wife since the passing of the decree and that the wife could not prove that it was the husband who made it impossible for her to live with him, the learned Judge decreed the suit in favour of the husband. Being aggrieved the wife has come up in appeal before us.

(3.) MR. Bhupendra Nath Mitra appearing on behalf of the appellant contends in the first place that the learned Additional District Judge did not properly consider the effect of the petition which was filed by the wife on 8th of June, 1965, before the Court which passed the decree for restitution of conjugal rights. The facts and circumstances were stated clearly by which she was precluded by the husband from going back to him and live" with him as wife, a copy of the said petition was served on the lawyer for the husband. The learned Judge without giving any consideration to the said petition simply disposed of the said petition by one word, namely, "rejected". Mr. Mitra contends that the petition should be treated as a petition under section 47 of the Code of Civil procedure and the petition was filed in order to show that there was sufficient compliance by the wife with the decree for restitution of conjugal rights. The learned court below was wrong in dismissing the application summarily and ought to have enquired into the merits of the said petition. He further contends that the learned Additional district Judge who passed the decree for divorce was also wrong to think that such a petition was surreptitiously filed on behalf of the wife. Though in another place of the judgment, the learned judge observes "if such a petition: would have been filed before the court which passed the decree for restitution of conjugal rights, the position would have been different". At the time of making such observation it is obvious that the learned Judge was unmindful of the fact that such a petition was actually filed before the court which passed the decree for restitution of conjugal rights before the initiation of the proceeding for divorce. In support of the contention that such a petition is to be regarded as a petition under section 47 of the Code of Civil procedure, Mr. Mitra relies on a Supreme Court decision reported in M. P. Shreevastava v. Mrs. Veena, A. I. R. 1967 supreme Court 1193. In. this case the husband obtained a decree for restitution of conjugal rights against his wife. The wife made various attempts to persuade the appellant to take her back into the marital home, but was unsuccessful. She then applied to the court which passed the decree for an order that the decree be recorded as satisfied. There was, at that time, no pending application by the appellant for execution of the decree or for a decree for divorce. On the question, whether the application of the respondent was maintainable either under Order 21, rule 2 or under Section 47 of the civil Procedure Code, it was held" "that the application was maintainable under section 47 but not under Order 21, Rule 2". It was further held that "a question relating to execution, discharge or satisfaction of a decree may be raised by the decree-holder and the pendency of an application for execution by the decree-holder is not a condition for the exercise of the Court's power". Without saying anything as to the correctness or otherwise of the statements made by the wife, the case as made out by the wife is exactly the same as the casa which was made by the wife in the case just now referred be. Such being the position it must be held that the application which was filed by the wife on 8th of June, 1965, was an application under section 47 of the Code of Civil Procedure and the learned court below was wrong to reject the said application summarily. The learned Judge who disposed of the application under section 13 was also wrong in overlooking the effect of the said petition.