JOGINER SINGH Vs. PUSHPA

JUDGEMENT

(1.) 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 th husband, Jogindar Singh appellant under section 13 (IA) (ii) of 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 there 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.

(2.) 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respondent for a decree for restitution of conjugal rights on the allegation that she had, without reasonable excuse, withdrawn from his society.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, where after the respondent left the house of the appellant. It was in January 1960 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 keep 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 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 of 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 the this date (May 18, 1960) for final disposal before me (Shri Manohar Lal Mirchia, B. A. LL B. P. C. S. , Subordinate Judge 1st Class Hoshiarpur) in the presence of Shari 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. "

(3.) AN application, dated May 30, 1960. To execute the decree was made by the appellant in the executing Court on June 1, 1960, but it was returned on account of some formal defect and was actually received back for hearing on June 3, 1960, on which date order was made for notice of it to the respondent. Now, the file for the execution application has not on it any process which shows service of the notice on the respondent. But on the notice on July 6, 1960, when the application came up for hearing before the Court, Shri Ajit Singh Bains Advocate for the respondent made the statement that "smt Pushpa Devi respondent is prepared to go with the decree-holder (appellant) at the very moment. The decree holder (appellant) may take her with him. . " This statement is signed by Shri Ajit Singh bains. This is followed by a statement by Shri Brahma Nand Advocate for the appellant that the respondent's brother Karam Singh should take the respondent to the house o the appellant and leave her there, explaining that if the appellant himself took the respondent with him, there was apprehension that the relations of the parties right become strained. He then added that the respondent alone could go with the decree holder. The statement is signed by him. The executing Court thereupon directed the respondent to accompany the appellant saying that the latter was prepared to take her along with him. On that Shri Brahma band advocate for the appellant made a statement that no further proceedings were a needed in the execution application, ant the executing Court then proceeded to order the dismissal of the execution application, again saying that the parties may go together. This is obviously dated July 6, 1960, in the name of the appellant but signed by Shri Brahma Nand Advocate. Its contents are so worded that the meaning is not immediately clear, but signed by Shri Brahma Nand Advocate. Its contents are so worded that the meaning is not immediately clear, but it appears to be an application made on behalf of the appellant in reply to some application by the respondent, and it was said on the side of the appellant that the respondent was merely making a pretence and she was not, in good faith, willing to go with the appellant. Although this application is on the execution file, but there is no order of the Court on it. There is, however, on the back of it a faint round marking of the seal of what appears to be the seal of the Court. When the parties appeared as witness during the hearing of the petition under section 13 of the Act, no question about this application was put to the appellant. On the next day, that is to say on July 7,1960, the appellant made another application in the executing court, signed by himself as also by his Advocate. Shri Brahma Nand, saying that although the respondent had agreed on the previous day to go with him and therefore, he had the execution application dismissed, but,. When outside the court, she refused to accompany him. The prayer was that the application be made a part of the execution file. On July 9, 1960, the executing Court proceeded to make the order - "no action can be taken, file. " This was the end of the first execution application by the appellant to execute the decree in his favour for restitution of conjugal rights against the respondent.