NARPAT SINGH GEHLOT Vs. KRISHNA KUMAR AND CHANDRA

JUDGEMENT

(1.) THESE are two connected revision applications by Dr. Narpat, Singh Gehlot, Assistant Professor, Electrical Engineering Department, Indian Institute of Technology, Kanpur. They arise out of two suits for maintenance filed against him by his wife Smt. Chandralekha and his son Krishma Kumar alias Ajai respectively in the Court of Munsif City. Jodhpur, on 30 -3 -72 Dr. Narpat Singh Gehlot filed an application under Sections 9 and 10 of the Hindu Marriage Act for restitution of conjugal rights or judicial separation in the alternative, in the court of Second Civil Judge, Kanpur, against his wife Smt. Chandra Lekha on 25 -1 -72 He filed an application in the Court of the City Munsif, Jodhpur, for stay of the proceedings in the two suits under Section 10, Civil PC read with Section 151, Civil P.C. Both these applications were rejected by the learned Munsif and the present revision applications have been filed against his orders.

(2.) DR . Narpat Singh Gehlot was married to Smt. Chandralekha at Jodhpur on 17 -5 -70. Since then they had been living as husband and wife at Jodhpur and then at Kanpur where Dr. Gehlot is posted. Smt. Chandralekha became pregnant at Kanpur and left for her father's house in Jodhpur from Kanpur on 27 9 -70. A son was born to her at Jodhpur on 3 -4 -71. Dr. Gehlot came to Jodhpur to take her back to Kanpur but she refused to go with him. The case of Dr. Gehlot under Section 9 of the Hindu Marriage Act is that Smt. Chandralekha has withdrawn from his society without reasonable cause. His case under Section 10 is based on Clause (b) of Sub -section (1) of Section 10 of the Hindu Marriage Act. The relevant provisions of the Act run as follows: Section 9 - -Restitution of Conjugal Rights: (1) When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly. (2) Nothing shall be pleaded in answer to a petition for restitution of conjugal rights which shall not be a ground for judicial separation or for nullity of marriage or for divorce. Section 10 - -Judicial Separation: (1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition to the district court praying for a decree for judicial separation on the ground that the other party: (a) ... (b) has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party.... Smt. Chandralekha's petition for separate maintenance is based on Clause (b) of Sub -section (2) of Section 18 of the Hindu Adoptions and Maintenance Act which runs as follows: Section 18 -Maintenance of wife: (1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime. (2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance: (a) ... (b) if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband Her case is that it was Dr. Gehlot who treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband.

(3.) WITH all respect to the learned Judicial Commissioner, who decided the case, the trial of a suit commences with the institution of a plaint and not after issues are framed. The Court is bound to stay the subsequent suit under Section 10, Civil P, C as soon as it becomes clear to it that the matter directly and substantially in issue in both the suits is the same. Where the parties have filed cross suits from the plaints of which it is quite clear that the matter directly and substantially in issue in the two cases is the same, the Court need not wait even for the filing of the written statement before staying proceedings in the subsequent suit under Section 10, CPC In this connection, I may refer to the decision of a Division Bench of the Calcutta High Court in Shorab Merwanji Modi and Anr. v. Mansata Film Distributors and Anr. : AIR1957Cal727 In that case, cross suits were filed on the basis of the same agreements in the Bombay and Calcutta High Courts. The suit in the Bombay High Court was filed earlier. No written statement had been filed in the Calcutta suit. But, nevertheless, it was stayed under Section 10, Civil P.C. It was observed at page 734 of the AIR: It is true that no written statement has yet been filed in the Calcutta suit, but what the defence of the Calcutta suit will be is fairly clear from the plaint in the Bombay suit itself as also the application made to this Court by Modi. If the Calcutta plaintiff's defence in the Bombay suit is substantially his plaint in the Calcutta suit and if the Bombay plaintiff's defence in the Calcutta suit is virtually his plaint in the Bombay suit, the matter in issue between the parties in the two suits would seem to be substantially the same.