The rules of pleading substantially applies to applications for restitution of conjugal right and the written statement filed in that respect. Order 6, Rule 2(1), CPC provides that "every pleading shall contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved." Therefore, it can be ascertained from a fact pleaded and evidence tendered as to whether that particular evidence should have been a fact to be pleaded. In the case at hand, if paragraphs 2 and 3 of the petition under Section 9 of the Hindu Marriage Act shall be read, that indicates that as if the wife alone walked away from the society of her husband along with the ornaments and dowry articles. In that context the pleading is silent if somebody else was associated with her or helped her in so deserting the husband. Under the given facts and circumstance association of others with the wife in that respect is a fact and not a mere piece of evidence simplicitor. For the aforesaid reasons, this Court does not find any error on record for ignoring such evidence tendered from the side of the husband.
Orissa High Court
Kunjabihari Pradhan vs Jayanti Pradhan on 17 June, 2003
Equivalent citations: 96 (2003) CLT 151
1. The above noted appeal and revision having arisen between the spouses, the husband appearing as the appellant/petitioner and the wife as respondent opposite party respectively in the appeal and the revision. On their consent both the above cases were heard analogously and are disposed of by this common judgment, which shall abide the result in both the Second Appeal and the Civil Revision.
2. For the sake of convenience of reference petitioner is described as the husband and the opposite party as the wife.
3. The marriage between the parties was solemnized on 3rd June, 1981. According to the allegations of the husband, the wife deserted and abandoned him with effect from 24.6.1981. In that respect the plea of the wife is that after ill-treatment and cruelty and when she was pregnant her husband on 29.9.1981 left her in her father's house at Bargarh and never came back to take her back. It is the admitted case of both the parties that on 11.5.1982 the wife gave birth to a daughter.
4. On the aforesaid respective pleadings the suit for restitution of conjugal right vide Title Suit No. 92 of 1982 was filed by the husband. The wife resisted to that claim and contested that suit Learned Subordinate Judge, Bargarh as the trial court on 24.1.1985 delivered a contested judgment dismissing the suit for restitution of conjugal right on the grounds that the husband has failed to prove wilful disassociation and voluntary desertion by the wife and the wife has come with reliable evidence relating to cruelty and desertion. As against that judgment and decree husband preferred an appeal in the court of District Judge, Sambalpur. On being transferred, the same was registered as Title Appeal No. 14/9 of 1985. Learned Addl. District Judge, Bargarh, heard and dismissed that appeal as per the impugned judgment passed on 22.9.1990. Learned Additional District Judge while accepting the factual findings recorded by the Subordinate Judge also took note of the ex parte decree and maintenance granted in favour of the wife in Title Suit No. 56 of. 1988 (the fact and circumstance relating to that suit shall be stated in the next paragraph) of the Court of Subjudge, Bargarh and held that, that decision also operates as res judicata relating to the issue of desertion and cruelty. As against that judgment and decree husband has preferred the present Second Appeal. On 22.1.1991. Second Appeal was admitted formulating the substantial question of laws as follows :
"(i) Whether the appellate Court is justified in accepting the judgment passed in T.S. No. 56/88 (an ex parte decree) as additional evidence during the pendency of an application under Order 9, Rule 13, CPC to set aside the ex parte decree ?
(ii) Whether the appellate Court is justified in holding that the judgment in T.S. No. 56/88 operated as res judicata ?
(iii) Whether the finding that the plaintiff has not pleaded the essential ingredients is an error of record. ? "
5. The wife filed Title Suit No. 56 of 1988 in the Court of Subordinate Judge, Bargarh claiming maintenance from her husband in accordance with the provision in Hindu Adoption and Maintenance Act, 1956. In that suit the wife alleged about ill-treatment, cruelty and desertion from 18.9.1981. She filed that suit claiming for both arrear maintenance and future monthly maintenance. Being unable to pay the required court-fees, she applied to sue as a pauper. The husband appeared and participated in that case relating to pauper application. After the application for forma pauperis was allowed, the suit was admitted and notice was issued to the husband. It could not be served through the usual process, therefore, with the leave of the Court notice was issued by substituted service. Accordingly, notice was published in a daily news-paper "The Kosala" published from "Sambalpur, and in spite of that when the husband did not appear the suit was taken up for ex parte hearing followed with an ex parte decree as per the judgment delivered on 30.9.1989. The husband filed an application under Order 9, Rule 13, CPC with the prayer to set aside that ex parte decree. That was registered as Misc. Case No. 69 of 1990. On 31.7.1993 learned Subordinate Judge, Bargarh rejected that application and dismissed the Misc. case. The husband preferred Misc. Appeal No. 22 of 1993 in accordance with the provision under Order 43, Rule 1, C.P.C. Learned District Judge, Sambalpur on 11.12.2000, dismissed that appeal on merit. Both the Courts below held that notice by substituted service on the defendant/husband was sufficient and therefore the ground of absence of sufficient notice having been not proved by the husband, he was not entitled to the relief under Order 9, Rule 13, C.P.C. As against that order the above noted civil revision No. 62 of 2001 has been filed by the husband.
6. For the sake of convenience, the lis in the Second Appeal is taken up first.
7. It is the settled position of law that in an appeal under Section 100 of the CPC the High Court is not to reassess factual finding recorded by the Courts below to interfere with the same unless such factual finding is infested with illegality, improper exercise, of jurisdiction or perversity. In the case at hand, the above noted substantial question of law was only pressed on record and no challenge, at the time of argument, was made to any other factual finding. Out of the same the third question of law is relating to the findings recorded by both the courts below whereas the substantial question of law vide the above quoted sub-paragraphs (i) & (ii) is relating to the finding recorded by the lower appellate court.
8. "Whether the finding that the plaintiff has not pleaded the essential ingredients an error of record" is one of the substantial questions of law. In that respect it appears from the judgment of learned Subordinate Judge that while deciding issue Nos. 2 and 3, i.e., the issues relating to whether the petitioner is guilty of deserting the respondent and if the petitioner is entitled to the restitution of conjugal rights, he refused to take note of the evidence tendered by the husband that on 11.6.1981 respondent came to her father's house at Bargarh and stayed there. The Court below has held that when the evidence is with the allegation of the above noted persons coming and taking her away, the aforesaid pleading is not sufficient to cover such evidence.
9. The rules of pleading substantially applies to applications for restitution of conjugal right and the written statement filed in that respect. Order 6, Rule 2(1), CPC provides that "every pleading shall contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved." Therefore, it can be ascertained from a fact pleaded and evidence tendered as to whether that particular evidence should have been a fact to be pleaded. In the case at hand, if paragraphs 2 and 3 of the petition under Section 9 of the Hindu Marriage Act shall be read, that indicates that as if the wife alone walked away from the society of her husband along with the ornaments and dowry articles. In that context the pleading is silent if somebody else was associated with her or helped her in so deserting the husband. Under the given facts and circumstance association of others with the wife in that respect is a fact and not a mere piece of evidence simplicitor. For the aforesaid reasons, this Court does not find any error on record for ignoring such evidence tendered from the side of the husband.
10. Be that as it may, even if such evidence shall be read in favour of the husband ignoring the lapses on the pleading, then also that only indicates that the wife left the house of her husband on 24.6.1981. As noted in the impugned judgment, the evidence on record both from Exts. 1 to 6, evidence of the husband in cross-examination and evidence of the wife as D. W. No. 1 clearly indicates that desertion was in the month of September and not in the month of June, 1981. Therefore simply because the husband has examined a few witnesses to speak about the wife dissociating from him voluntarily in June, 1981 that evidence on record is contradictory to the above noted evidence. Therefore the discarded evidence of the husband even if considered, that does not improve the case of the husband in-any manner relating to the relief of restitution of conjugal right.
11. The two other substantial questions of law are relating to justifiability of accepting ex parte judgment of T.S. No. 56 of 1988 as additional evidence and whether the findings in that judgment operates as res judicata. On perusal of the impugned judgment of the first appellate Court, it is seen that learned Additional District Judge appreciated and accepted the factual finding and conclusion recorded by the trial court on all the relevant issues and concord relating to non-availability of the relief of restitution of conjugal rights in favour of the husband because of the evidence which was before the trial court. In addition to that the appellate Court also took note of the ex parte judgment and decree passed in Title Suit No. 56 of 1988 as an additional circumstance in relation to the factum of ill-treatment, cruelty and desertion by the husband and held that to be a factual finding of binding nature until such decree is set aside by the competent Court of jurisdiction. In other words, learned Additional District Judge did not dismiss the application under Section 9 of the Hindu Marriage Act solely on the ground of the decree passed in Title Suit No. 56 of 1988.
12. In that context, argument of the husband is that when the decree passed in Title Suit No. 56 of 1988 is an ex parte decree, that was passed subsequent to the decree under appeal and when the application under Order 9, Rule 13, CPC was subjudice, that decree was of no binding nature to operate as res judicata relating to finding of cruelty and desertion by the husband. Keeping in view the position of law in that respect, this Court finds ho substance in that argument. A judgment delivered by a Court between the parties on relevant issue is binding on the parties so long as that judgment and decree holds the field. In that context it is immaterial whether that judgment was passed on contest or ex parte. Pendency of an application under Order 9, Rule 13, CPC, ipso facto does not render such judgment and decree ineffective or non-operative. However, if a judgment has been delivered with reference to an ex parte judgment and decree as the sole basis and ultimately if that ex parte decree is set aside, then the judgment in the latter case has to be corrected on due and proper application in accordance with law. On the basis of the aforesaid analysis of the position of law, this Court does not find that the appellate Court committed any illegality in referring to and relying on the judgment and decree passed in Title Suit No. 56 of 1988 as an additional circumstance in support of dismissal of the application under Section 9 of the Hindu Marriage Act.
13. Even if the judgment and decree passed in Title Suit No. 56 of 1988 shall be excluded from the arena of consideration while considering the impugned judgment of the Subordinate Judge relating to the application under Section 9 of the Hindu Marriage Act, then also that judgment stands on its own strength to dismiss the application under Section 9 of the Hindu Marriage Act, and that is apparent on reading of the evidence on record and the concurrent factual finding recorded by both the Courts below.
14. For the reasons indicated above, the impugned judgment and the decree of the Courts below are not liable to be interfered with and accordingly the Second Appeal is dismissed with cost ail-throughout. Hearing fee is assessed at contested scale.
15. So far as the Civil Revision is concerned, it is seen from the contention of both the parties consistent ail-throughout that the husband seeks for setting aside the ex parte decree in Title Suit No. 56 of 1988 on the ground of notice being not tendered validly. "Substituted service" as provided in Order 5, Rule 20, CPC is a valid mode of tendering notice with the leave of the Court. In that context the whole-hearted effort of the husband is to say that publication of the notice in "The Kosala" is not sufficient to satisfy the requirement of substituted service inasmuch as that news-paper has no circulation at Bargarh or Tora, the respective places of his residence during the relevant period. In that respect learned Subordinate Judge has categorically held that the burden of proof that the news-paper had no circulation at Bargarh or Tora was on the husband and he has failed to prove that circumstance. The appellate Court has endorsed its approval to that finding of the Subordinate Judge. In course of argument nothing could be pointed out that such finding of the Courts below are contrary to the evidence on record. In other words, the husband has not been able to prove on record that "The Kosala" had no circulation at Bargarh or Tora. In that respect the husband has neither examined the concerned officials of that news-paper nor a correspondent of that locality relating to non-circulation of that news-paper in the aforesaid two localities. Under such circumstance when the petitioner's claim for setting aside the ex parte decree is without any substance on the above noted sole plea, the Courts below were not unreasonable in dismissing the application under Order 9, Rule 13, CPC.
16. It was also argued that 'substantial justice should be done and the husband having the desire to contest the suit for, maintenance, he be provided with such an opportunity at least for the ends of justice. This Court finds no substance in that argument inasmuch as a matrimonial relationship shattered a few months after its solemnisation as back as in the year 1981 and the wife is staying separately from her husband since that year. In the meantime a period of about two decades have elapsed. The husband has never come forward with a plea or contention for providing maintenance to the wife at any point of time. In Indian society and particularly in the Hindu society a girl's future is doomed once she has married to a person and there is a disruption of relationship. In this case the wife being blessed with a girl child had to lead the life without the husband all-throughout and the husband never thought of the well being of the wife for such a long period. Under such circumstance, equity does not stand in favour of the husband for consideration of the contention of ends of justice. A claim of maintenance which is meagre and moderate and which was granted, long before, cannot be set aside only for the pleasure of the husband simply because he wants to contest that issue. Whether or not the husband is guilty of cruelty and desertion, but the facts and circumstance shows enough that he has been cruel enough to the wife by not providing any maintenance for such a long period. Therefore, this Court finds that ends of justice does not tilt in favour of the husband so as to interfere with the ex parte decree of maintenance with the aid of Order 9, Rule 13, CPC.
Accordingly, the Civil Revision is also dismissed. No cost is awarded.
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