Smt. Jaswantkaur vs Shri Kaur Singh

M.R. Sharma, J.—The Respondent obtained an ex-parte decree for restitution of conjugal rights against the Petitioner en May 31, 1971. On the basil of that decree, he made an application for divorce u/s 13 of the Hindu Marriage Act on June 5, (sic). This application was also decided in his favour and an ex parts decree for dissolution of marriage was passed on 19 (sic) 1973. The Petitioner filed applications for setting aside the ex parte decrees for restitution of conjugal rights and the dissolution of the marriage. Her application for setting aside the decree for restitution of conjugal rights was dismissed but the application for restoration of the proceedings re dissolution of marriage was allowed. It was allowed on 15.6.1976. It appears that the Respondent had also filed another petition for dissolution of marriage on June 15, 1976. The first petition came up for hearing before the learned trial Court on July 20, 197(sic) for framing of issues. On behalf of the Petitioner an issue was claimed that since the Respondent had filed another petition also, the two petitions on the same subject could not continue. Upon this, the Respondent withdrew the first petition with the leave of the Court on October 31, 1977. The Petitioner came up in revision before this Court on the ground that since the Petitioner had withdrawn one petition on the same cause of action the learned trial Court should have framed an issue about the maintainability of the second petition. When that revision petition came up for hearing before me on 3 3 1978(sic) I passed the following order:-

Mr. Snant(sic) states hat he would continue with the first petition filed by his client u/s 13 of the Hindu Marriage Act and that the second petition filed on the same point may be kept stayed. Shri I. K. Mehta has no objection to this course being adopted.

When the matter went to the learned trial court, by some oversight or omission, the Court proceeded to try the second petition after framing an issue on the point whether the decree for restitution of conjugal rights obtained by the Respondent had been satisfied or not. Beth the parties were allowed full opportunity of leading evidence on this issue which ultimately was decided against the Respondent. The Respondent did not file an appeal against that judgment but instead filed an application for review before the learned District Court on the ground that since the second petition had been stayed under my orders the Court had no jurisdiction to try the same. This review petition was allowed by the learned District Court and the Petitioner has come up in revision against that order.

Mr. Mehta, the learned Counsel for the Petitioner, has argued that both the petitions contained substantially similar allegations and the point in controversy was whether the decree for restitution of conjugal rights had been satisfied or not The learned Counsel asserts that it on account of tome inadvertent mistake the learned trial Court recorded the evidence in one file instead of the other, that should have made no difference as far as the merits of the case are concerned.

Mr Shant, the learned Counsel for the Respondent, on the other hand baa argued that in the first petition there were only two issues and in the second petition there were six issues. The learned Counsel submitted that the points of distinction between the two petitions had been noted by the learned trial Court when it reviewed its earlier order.

Technically speaking, Mr. Shant is correct. The number of issues in the two petitions is of courts different but the decree for dissolution of marriage was being sought by the Respondent on the ground that an earlier decree for restitution of conjugal rights passed in his favour had not been complied with by the Petitioner. The case set up by the Petitioner was that she had actually started living with the Respondent and the decree for restitution of conjugal rights had been complied with. Thus, as far as the substance of the matter is concerned, the controversy raised in the two petitions was almost similar. It is no doubt true that the learned court should have recorded the evidence in the first petition because the second one had been stayed by me and technically speaking the Court was also justified in reviewing its decision, but after passing the order of review, the learned trial Court should have made the record of evidence tad by the parties in the second petition a part of the first petition. Therefore, it would have noted the circumstances under which this inadvertent mistake crept in and ordered that the judgment be deemed to have been given in the first petition.

It is settled law that an act done by a court should harm no party in the litigation. The only mistake committed by the learned court was that instead of making the evidence a part of one file it made it a part of the other file. Had it merely rectified its mistake, the matter would have ended there. By passing the instant type of order, on a review petition, the Court has deprived the Petitioner the benefit of a finding of fact which had been recorded in her favour after the evidence led by the two parties had been properly considered I might also add that so long as the evidence was being recorded the Respondent did not bring it to the notice of the court that the evidence was being recorded in the wrong file. In other words, the Respondent took a chance of having a favourable decision in his favour and when he failed on merits he came forth with the technical objection that the entire proceedings be set at naught and the judgment rendered in favour of the Petitioner be regarded as a nullity. He can not be allowed with such a snap advantage While exercising matrimonial, jurisdiction a court is not merely concerned with the rights of the private parties but it has to keep in view the matters of public policy as well. In spite of the fact that divorce proceedings have now been made by the legislature as less strigent, it is in public interest that marriages should not be annuled on lighter grounds.

The next question which remains to be considered is as to what steps should be taken by me so that the rights of both the parties are properly safeguarded. The Respondent could have filed an appeal against the earlier order passed by the learned trial court and could have challenged its decision on merits by urging that the Petitioner did comply with the decree for restitution of conjugal fights. The limitation for filing such an appeal has expired and if I set aside the order under revision without any conditions the rights of the Respondent would certainly be adversely affected. In this situation I pass a conditional order to the effect that this petition, is allowed, the order passed by the learned trial Court In review is set aside, the judgment earlier rendered by it be deemed to have been rendered in the first petition, and it shall now be open to the Respondent if he is so advised, to file an appeal against that order. In case, he does so, the period of limitation for filing the appeal shall start running with effect from today. No costs.