Gurmail Kaur vs Gurmel Singh

V.K. Jhanji, J.—This appeal is directed against the judgment and decree passed by the Additional Senior Sub-Judge, Moga whereby petition u/s 9 of the Hindu Marriage Act (for short the Act) filed by the husband, namely, Gurmel Singh, has been allowed.

Parties to the appeal were married according to Anand Karaj Ceremony on 15.6.1975 in Village Chand Nawan, Tehsil Moga. They co-habited as husband and wife and out of this wedlock, two children i.e. one female and one male, were born on 24.9.1976 and 22.7.1978 respectively. Both the children are living with the appellant. In this appeal, it has been contended by the learned counsel for the appellant that the decree u/s 9 of the Act has became redundant inasmuch as during the pendency of the appeal, respondent Gurmel Singh has filed a petition u/s 13 of the Act for dissolution of marriage through a decree of divorce on the ground of desertion and cruelty.

A pointed reference has been made by the counsel to the statement dated 24.2.1994 made by the respondent in proceedings u/s 13 of the Act wherein he has stated that in view of the litigation launched by the appellant against him, he is not prepared to keep her with him, Reference has also been made to the statement dated 24.2.1994 made by appellant Gurmail Kaur in the said proceedings wherein she has stated that she had been living with two children in the same house of the respondent and a partition wall has been raised in the half portion, In the half portion, she is living with the children while in the other half portion, respondent is residing. She has also stated that she is prepared to live with the respondent but the respondent is not ready and willing to keep her. Against this, the learned counsel for the respondent argued that once a right has accrued to the respondent on the basis of decree u/s 9 of the Act, the right cannot be defeated by holding that decree u/s 9 of the Act has become redundant. The learned counsel also contended that during the pendency of proceedings u/s 8 of the Act, appellant never showed his willingness to live with the respondent. Rather a finding was recorded by the trial Court that she was willing to reside with her husband.

After hearing the learned counsel for the parties at length and on going through the record, I am of the view that because of subsequent events, decree u/s 9 of the Act has become redundant. Section 9 of the Act states that where either the husband or the wife has withdrawn from the society of the other without reasonable cause, the aggrieved party may apply to the District Court for restitution of conjugal rights and the Court on being satisfied of the truth of the statements made in such a petition and there is no legal ground why the application should not be granted, may decree the restitution of conjugal rights. The words "restitution of conjugal rights" in the normal sense mean restoration of conjugal rights which were enjoyed by the parties previously. The remedy provided in this section is something more than mere reinstatement of some thing which already enjoyed and it would mean compelling one of the spouses to fulfill one of the obligations which flow from the marital tie. In case, decree u/s 9 of the Act is maintained, it would mean directing the appellant to fulfill her matrimonial obligation by residing with the respondent. This can be done only if the respondent is prepared to accept the appellant. In the present case, during the pendency of the appeal in this Court, respondent has filed a petition u/s 13 of the Act for dissolution of marriage through a decree of divorce through desertion and cruelty. Decree has not been sought on the ground that the appellant has failed to resume co-habitation within one year or afterwards after the passing of the decree for restitution of conjugal rights. Since the respondent has made a statement in proceedings u/s 13 of the Act that he is not prepared to keep the appellant with him, I am of the view that continuation of the proceedings u/s 9 of the Act, would be an exercise in futility. Decree u/s 9 of the Act granted by the trial Court has become redundant and the appeal against the decree too has been rendered infructuous and, therefore, the appeal deserves to be disposed of as having become infructuous. It is ordered accordingly.