Tuesday, 31 January 2017

Whether court can set aside exparte decreeof restitution of conjugal rights on non compliance of S 23,(1)(a) of Hindu marriage Act?

 Therefore, it is incumbent on the petitioning husband or

wife, as the case may be, to satisfy the court about his/her sincerity

in wanting to resume cohabitation with his/her spouse. This is more

so, since clause (a) to sub-section (1) of Section 23 of the Hindu

Marriage Act mandates that, in any proceeding under the said Act,

whether defended or not, the court shall decree the relief only if the

court is satisfied that any of the grounds for granting the relief exists

and the petitioner, except in cases where the relief is sought by him

or her on the ground specified in sub-clause (a), sub-clause (b) or



sub-clause (c) of clause (ii) of Section 5, is not in any way taking

advantage of his or her own wrong or disability for the purposes of

such relief.

      12. In the instant case, a reading of the impugned order

(which we have already extracted hereinbefore) would show that,

the Family Court passed the ex parte decree for restitution of

conjugal rights, merely accepting the proof affidavit filed by the

respondent herein, even without recording the satisfaction of the

court in terms of clause (a) to sub-section (1) of Section 23 of the

Hindu Marriage Act.

      13. In that view of the matter, the ex parte decree for

restitution of conjugal right passed by the Family Court cannot be

sustained in law. Though the appellant has not offered specific

reason for her non-appearance in court after filing her objections in

the O.P., considering the totality of the facts and circumstances of

the case and also the fact that the Family Court passed the ex parte

decree merely accepting the proof affidavit filed by the respondent

herein, even without recording its satisfaction in terms of clause (a)

to sub-section (1) of Section 23 of the Hindu Marriage Act, this

appeal is disposed of by setting aside the ex parte order passed by



the Family Court on 31.07.2014 in O.P.No.2251 of 2012, on the

appellant depositing a cost of Rs.3,000/- before the Family Court,

within one month from the date of receipt of a certified copy of this

judgment, for payment to the respondent herein. On such deposit

being made, the Family Court shall proceed with O.P.No.2251 of

2012 and dispose of the matter finally, as expeditiously as possible,

at any rate within four months from the date of such deposit, after

affording both the sides an opportunity to adduce evidence.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT:

          MR.JUSTICE P.R.RAMACHANDRA MENON
                                   &
              MR. JUSTICE ANIL K.NARENDRAN

      13TH DAY OF JULY 2016
                  Mat.Appeal.No. 989 of 2015

            RINJU, 
Vs

            SANTHOSH, 
Citation: 2016 (6) ALLMR(JOURNAL)101


      The appellant is the respondent in O.P.No.2251 of 2012 on the

file of the Family Court, Thrissur, a petition filed by the respondent

herein for a decree of restitution of conjugal rights. On receipt of

notice, the appellant entered appearance and filed her objections in

the said O.P. But, she failed to appear before the Family Court on

the subsequent posting dates and as such, she was set ex parte. The

respondent herein filed proof affidavit and the Family Court allowed

the O.P. by an ex parte order dated 31.07.2014. Paragraphs 4 and 5

and the operative portion of the said order read thus;

      "4.   The petitioner filed affidavit in support of the averments

      in the petition.

      5.    From the evidence, averments in the petition are

      proved.

            In the result, the petition is allowed as follows; The

      respondent is directed to come and reside with the petitioner

      within one month from the date of decree. If she fails to obey

      the decree, the petitioner will be entitled to get it executed

      through court."


      2.    Feeling aggrieved by the ex parte decree of the Family

Court in O.P.No.2251 of 2012 the appellant is before this Court in

this appeal.

      3.    This appeal was filed with a delay of 335 days. By a

separate order passed on this date we have condoned the delay in

filing the appeal.

      4.    Since the only issue that arises for consideration in this

appeal is as to whether the appellant has made out a case to set

aside the ex parte decree passed by the Family Court, the learned

counsel for both the parties have agreed that the appeal itself can be

finally heard and disposed of.

      5.    Heard the arguments of the learned counsel for the

appellant and also the learned counsel for the respondent.

      6.    The pleadings and materials on record would show that,

the marriage between the appellant and the respondent was

solemnised on 01.01.2012. After the marriage, they resided

together as husband and wife and a female child was also borne in

the said wedlock. Alleging that the appellant had withdrawn from the

company of the respondent without any valid cause, the respondent

herein has approached the Family Court in O.P. No.2251 of 2012



seeking a decree of restitution of conjugal rights. Though the

appellant entered appearance before the Family Court and filed

objection, she could not appear on the subsequent posting dates. As

such, she was set ex parte and the Family Court passed an ex parte

decree for restitution of conjugal rights.

     7.     The appellant would contend that she was not afforded

with a reasonable opportunity before the Family Court to contest the

matter by adducing evidence. However, the specific reason for her

non-appearance in court after filing her objections in the O.P. has

not been disclosed either in the memorandum of appeal or in the

affidavit accompanying I.A.No.3543 of 2015 filed seeking an order of

stay of the execution of the ex parte decree passed by the Family

Court. The only contention raised in the memorandum of appeal is

that, the appellant has no means of livelihood and she and her child

are totally depending on her parents for their livelihood. In the

memorandum of appeal the appellant would also state reasons for

leaving her matrimonial home. We express no opinion on the said

contentions raised by the appellant and it is for her to substantiate

such contentions before the Family Court by adducing cogent and

convincing evidence.




      8.    Section 9 of the Hindu Marriage Act, 1955 deals with

restitution of conjugal rights. As per Section 9 of the Act, 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 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. Going by the Explanation to Section 9, where a question

arises whether there has been reasonable excuse for withdrawal

from the society, the burden of proving reasonable excuse shall be

on the person who has withdrawn from the society.

      9.    The essence of a decree for restitution of conjugal rights

is that, either the husband or the wife desiring the company of

his/her spouse makes an effort through the court to restore his/her

conjugal rights. The mode of enforcement of a decree for restitution

of conjugal rights is provided under Rules 32 and 33 of Order XXI of

the Code of Civil Procedure, 1908. As per sub-rule (1) of Rule 32,

where the party against whom a decree for restitution of conjugal

rights has been passed, has had an opportunity of obeying the



decree and has wilfully failed to obey it, the decree may be enforced

by the attachment of his property. Going by sub-rule (3) of Rule 32,

where any such attachment under sub-rule (1) of Rule 32 has

remained in force for six months, if the judgment-debtor has not

obeyed the decree and the decree-holder has applied to have the

attached property sold, such property may be sold; and out of the

proceeds the court may award to the decree-holder such

compensation as it thinks fit, and shall pay the balance, if any, to

the judgment-debtor on his application. Rule 33 deals with the

discretion of the court in executing a decree for restitution of

conjugal rights.

     10. The provisions under Rules 32 and 33 of Order XXI of the

Code of Civil Procedure therefore provides for enforcement of a

decree for restitution of conjugal rights only to the extent indicated

therein. Therefore, on the strength of the decree for restitution of

conjugal rights obtained by either the husband or the wife, his/her

spouse cannot be compelled restore conjugal rights or to resume

cohabitation, unless and until he/she is willing for such restoration or

resumption. However, it has to be noticed that, as per clause (ii) of

sub-rule (1A) of Section 13 of the Hindu Marriage Act, a petition for


dissolution of marriage by a decree of divorce could be maintained

on the ground that there has been no resumption of cohabitation

between the parties to the marriage for a period of one year or

upwards after the passing of a decree for restitution of conjugal

rights in a proceedings to which they were parties. Therefore, the

provisions under Section 9 of the Hindu Marriage Act for restitution

of conjugal rights cannot be allowed to be misused by either the

husband or the wife, as the case may be, whose request for

restitution of conjugal rights was merely a pretence and sham, and

intended for an extraneous purpose of securing a decree for divorce

invoking clause (ii) of sub-rule (1A) of Section 13 of the said Act.

      11. Therefore, it is incumbent on the petitioning husband or

wife, as the case may be, to satisfy the court about his/her sincerity

in wanting to resume cohabitation with his/her spouse. This is more

so, since clause (a) to sub-section (1) of Section 23 of the Hindu

Marriage Act mandates that, in any proceeding under the said Act,

whether defended or not, the court shall decree the relief only if the

court is satisfied that any of the grounds for granting the relief exists

and the petitioner, except in cases where the relief is sought by him

or her on the ground specified in sub-clause (a), sub-clause (b) or



sub-clause (c) of clause (ii) of Section 5, is not in any way taking

advantage of his or her own wrong or disability for the purposes of

such relief.

      12. In the instant case, a reading of the impugned order

(which we have already extracted hereinbefore) would show that,

the Family Court passed the ex parte decree for restitution of

conjugal rights, merely accepting the proof affidavit filed by the

respondent herein, even without recording the satisfaction of the

court in terms of clause (a) to sub-section (1) of Section 23 of the

Hindu Marriage Act.

      13. In that view of the matter, the ex parte decree for

restitution of conjugal right passed by the Family Court cannot be

sustained in law. Though the appellant has not offered specific

reason for her non-appearance in court after filing her objections in

the O.P., considering the totality of the facts and circumstances of

the case and also the fact that the Family Court passed the ex parte

decree merely accepting the proof affidavit filed by the respondent

herein, even without recording its satisfaction in terms of clause (a)

to sub-section (1) of Section 23 of the Hindu Marriage Act, this

appeal is disposed of by setting aside the ex parte order passed by



the Family Court on 31.07.2014 in O.P.No.2251 of 2012, on the

appellant depositing a cost of Rs.3,000/- before the Family Court,

within one month from the date of receipt of a certified copy of this

judgment, for payment to the respondent herein. On such deposit

being made, the Family Court shall proceed with O.P.No.2251 of

2012 and dispose of the matter finally, as expeditiously as possible,

at any rate within four months from the date of such deposit, after

affording both the sides an opportunity to adduce evidence.

      It is made clear that, we have not expressed anything touching

the merits of the issues between the parties and all such issues are

left open to be urged before the Family Court.


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