JOGINDER SINGH Vs. PUSHPA

JUDGEMENT

(1.) While this reference has been argued for the last few days by the learned Counsel on both sides, circumstances have been brought to our notice that this is a case which will more appropriately be disposed of if the whole of the case is before this Bench and not merely the two questions whcih have been referred by the Division Bench to this Bench. Myself and my learned brother, Pandit J., were in the Division Bench when we made the reference, and we are agreed that this is a proper case whcih should be heard as a whole on all questions arising, whether of fact of law, by this Bench, and Mahajan J., also agrees with this opinion of ours. So that all the three Judges are agreed on this and the order then is that this case will now be heard by this Bench both on facts as well as on all questions of law, including the two questions already in the reference, arising in the particular facts of this case. The counsel will not proceed to arguments on this basis.

(2.) This is an appeal under clause 10 of the Letters Patent from the judgment and decree, dated April 15, 1964, of a learned Single Judge. It arises out of a petition by the husband, Joginder Singh appellant, under section 13(1A)(ii) of by the Hindu Marriage Act, 1955 (Act 25 of 1955), hereinafter to be referred as "the Act', for dissolution of marriage by a decree of divorce on the ground that here has been no restitution of conjugal rights between the parties, that is to say, the appellant and his wife, Pushpa respondent, for a period of two years or upwards after the passing of the decree for restitution of conjugal rights in a proceeding to which they were parties.

(3.) The appellant made a petition under section 9(1) of the Act against the respondent for a decree for restitution of conjugal rights on the allegation that she had, without reasonable excuse, withdrawn from his society. The parties were married on June 25, 1958, and lived together only up to October of that year at the village of the appellant, whereafter the respondent left the house of the appellant. It was in January, 1960, that the appellant made the petition under section 9(1) of the Act. The parties appeared before the trial Court on May 18, 1960. The appellant made this statement in Court - "I want to kepp the respondent (wife) with me. I will never maltreat her in future. But it should not be taken that I have maltreated her. I am ready to settle her happily after forgetting all the previous matters. I promise before the Court that I will not maltreat her in future." On that the respondent made this statement - "It is stated that the respondent (wife) is prepared to go along with the petitioner (husband). The petitioner had turned her out of the house. I am ready to stay with the petitioner forgetting all the previous matters." The trial Court then immediately proceeded to give the judgment, the operative part of which reads - "At the time of framing of the issues, the petitioner and the respondent made a statement before the Court that they wanted to live together. The petitioner assured the Court as well as the respondent that he shall not maltreat the respondent. Both parties made a statement that they shall try to forget the past though they were not agreed as to whether the petitioner had been treating the respondent with cruelty or not. As such in accordance with the statements of the parties the petition for restitution of conjugal rights is accepted. No order is made as to costs as the same were not pressed before me on behalf of the petitioner." A decree in the terms of the judgment followed, of which the copy is Exhibit A/4. It reads - "This suit (petition) coming on this day (May 18, 1960), for final disposal before me (Shri Manohar Lal Mirchia, B.A., LL.B., P.C.A., Subordinate Judge 1st Class, Hoshiarpur) in the presence of Shri Brahma Nand Advocate, for the petitioner and Shri Ajit Singh Bains Advocate, for the defendant (respondent), it is ordered that in accordance with the statements of the parties, the petitioner is granted a decree for restitution of conjugal rights. No order is made as to costs."