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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