BHAI GURDAS COLLEGE OF LAW,SANGRUR

IN THE HON'BLE COURT OF PRINCIPAL JUDGE, FAMILY COURT

JALANDHAR

IN THE MATTER OF

Prabha .…………………………………………………………………Petitioner

VERSUS

Suresh ………………………..……………………………………….Respondent

MEMORIAL FOR THE PETITIONER

SUBMITTED TO SUBMITTED BY

Ms. Jashanpreet kaur Gurlez khalid

Moot Court Incharge Roll No :18062

B.A.LL.B 10th Sem

 TABLE OF CONTENTS

Proposition ……………………………………………………………….2,3

List of abbreviations………………………………………………….4

Index of Authorities ………………………………………………….5

Statement of jurisdiction…………………………………………..6

Statement of Facts…………………………………………………….7,8

Question of law…………………………………………………………..9

Arguments………………………………………………………………..10 TO 13

Prayer ……………………………………………………………………14

Relevant section…………………………………………………….15

Power of attorney……………………………………………………

Authorities………………………………………………………………16to25
 PROPOSITION

Prabha and Suresh (a Major in Indian Army), both resident of Jalandhar,

belonging to Ravidasia community of Punjab, who are Hindus by religion, got
married in 2007 in Anand Karaj form of marriage, which is the marriage
ceremony of Sikhs. The couple got their marriage registered as per the
provisions of the Hindu Marriage Act, 1955 and in effect a marriage certificate
was issued by the authorities. Out of this wedlock two children were born in
the year 2008 and 2011 respectively.

In 2008, after taking retirement from Indian Army, Suresh went to England for
higher studies and stayed there for two years. Then in April 2010, he moved to
Canada and called his wife to join him along with their first child. In January
2011, their second child was born in Canada. In February 2011, he went to
New York. Thereafter he asked Prabha to go back to India. In March 2011,
Prabha along with her children came back to Punjab (India).

After moving to New York, Mahesh severed all his contacts with Prabha. He
has developed an extra marital affair with a lady named Elizabeth Prescott. In
January 2012, Prabha wrote a letter to Mahesh expressing her willingness to
join Suresh in New York. Suresh in reply wrote to Prabha that she should not
come to New York, as he was interested in getting their marriage dissolved. In
April 2012, he filed a petition for divorce in Trial Court of New York on the
ground that his marriage has irretrievably broken down.

Prabha could not contest these proceedings, she having no means to go to

New York. Meanwhile in July 2012, the Trail Court of New York granted a
divorce decree in favour of Suresh. Further, the court ordered that the
husband would pay to the wife and children an amount of Rs. 50,000 per
month for their maintenance. Since Suresh failed to pay maintenance to wife
and children, Prabha approached the Trial Court of New York through a letter
and prayed that she be provided legal aid. Thereafter, proceedings were
initiated and warrants of arrest were issued against Suresh. She further said
that the ex parte decree of divorce obtained by the husband was not binding
on her and was illegal and that she continues to be the wife of Suresh. She
further asserted that as per the provisions of Hindi Marriage Act, 1956, the
grounds of divorce (on the basis of adultery, cruelty and desertion) under
Section 13 of the Act are available to the wife under the given set of
circumstances. In fact, she is the actual victim, who was being further
victimized by the order of the New York, Trial Court.

In April 2013, Prabha filed a petition under Section 9 of the Hindu Marriage
Act, 1955 for Restitution Of Conjugal Rights in the District Court, Jalandhar,
Suresh appeared in the court and filed an application for dismissal of petition.
He did not file any written statement and he referred to the decree of divorce
granted by the Trial Court of New York and said that despite of notice, Prabha
did not consent the same and by not raising any objection she is deemed to
have accepted the jurisdiction of Foreign Court in trying the petition and thus
making the decree nisi-absolute by the Foreign Court and is thus estopped
from filing the present petition (Under Section 11 read with Section 151 of
Code of Civil Procedure, 1908). The case is pending for adjudication in District
Court, Jalandhar.

Prepare memorials and argue from both the sides.

Legal Issues*

1. Whether the marriage of Prabha and Suresh is valid as per the provisions of
The Hindu Marriage Act, 1955?

2. Whether non-contest by wife of divorce petition filed by the husband in a

Foreign Court implied that she had conceded to the jurisdiction of the Foreign
Court?

3. Whether the principle of Res-Judicata under Section 11 of Code of Civil

Procedure, 1908 is applicable to the proceedings being initiated in District
Court, Jalandhar?
 LIST OF ABBREVIATIONS

AIR ALL INDIA REPORTER

Cri L J CRIMINAL LAW JOURNAL

Cr.P.C CRIMINAL PROCEDURE CODE

HC HIGH COURT

Hon'ble HONOURABLE

PW PROSECUTION WITNESS

SC SUPREME COURT

U/S UNDER SECTION

V. VERSUS
 INDEX OF AUTHORITIES

CASES REFERRED
 Punjab-Haryana High Court

 Smt. Maya Devi vs Kailash Chander on 17 December, 2013

STATUTE REFERRED

1. The Code of Civil Procedure, 1908

2. Hindu Marriage Act, 1955

3. International Comity of Courts

 STATEMENT OF JURISDICTION

The Hon'ble court has jurisdiction to try and decide the present

cases as alleged incident has taken place within the jurisdiction of

the court of Principal judge or Family court , Jalandhar . Therefore, this

Hon'ble court has jurisdiction and power to try this case.

STATEMENT OF FACTS
For the sake of brevity and convenience of this Hon'ble court the
facts of the present case are summarized as follows:

Prabha and Suresh (a Major in Indian Army), both resident of Jalandhar,

belonging to Ravidasia community of Punjab, who are Hindus by religion, got
married in 2007 in Anand Karaj form of marriage, which is the marriage
ceremony of Sikhs. The couple got their marriage registered as per the
provisions of the Hindu Marriage Act, 1955 and in effect a marriage certificate
was issued by the authorities. Out of this wedlock two children were born in
the year 2008 and 2011 respectively.

In 2008, after taking retirement from Indian Army, Suresh went to England for
higher studies and stayed there for two years. Then in April 2010, he moved to
Canada and called his wife to join him along with their first child. In January
2011, their second child was born in Canada. In February 2011, he went to
New York. Thereafter he asked Prabha to go back to India. In March 2011,
Prabha along with her children came back to Punjab (India).

After moving to New York, Mahesh severed all his contacts with Prabha. He
has developed an extra marital affair with a lady named Elizabeth Prescott. In
January 2012, Prabha wrote a letter to Suresh expressing her willingness to join
Suresh in New York. Suresh in reply wrote to Sunita that she should not come
to New York, as he was interested in getting their marriage dissolved. In April
2012, he filed a petition for divorce in Trial Court of New York on the ground
that his marriage has irretrievably broken down.

Prabha could not contest these proceedings, she having no means to go to

New York. Meanwhile in July 2012, the Trail Court of New York granted a
divorce decree in favour of Suresh. Further, the court ordered that the
husband would pay to the wife and children an amount of Rs. 50,000 per
month for their maintenance. Since Suresh failed to pay maintenance to wife
and children, Prabha approached the Trial Court of New York through a letter
and prayed that she be provided legal aid. Thereafter, proceedings were
initiated and warrants of arrest were issued against Suresh. She further said
that the ex parte decree of divorce obtained by the husband was not binding
on her and was illegal and that she continues to be the wife of Suresh. She
further asserted that as per the provisions of Hindi Marriage Act, 1956, the
grounds of divorce (on the basis of adultery, cruelty and desertion) under
Section 13 of the Act are available to the wife under the given set of
circumstances. In fact, she is the actual victim, who was being further
victimized by the order of the New York, Trial Court.

In April 2013, Prabha filed a petition under Section 9 of the Hindu Marriage
Act, 1955 for Restitution Of Conjugal Rights in the District Court, Jalandhar,
Suresh appeared in the court and filed an application for dismissal of petition.
He did not file any written statement and he referred to the decree of divorce
granted by the Trial Court of New York and said that despite of notice, Prabha
did not consent the same and by not raising any objection she is deemed to
have accepted the jurisdiction of Foreign Court in trying the petition and thus
making the decree nisi-absolute by the Foreign Court and is thus estopped
from filing the present petition (Under Section 11 read with Section 151 of
Code of Civil Procedure, 1908). The case is pending for adjudication in District
Court, Jalandhar.

QUESTION OF LAW
1. Whether the marriage of Prabha and Suresh is valid as per the provisions of
The Hindu Marriage Act, 1955?

2. Whether non-contest by wife of divorce petition filed by the husband in a

Foreign Court implied that she had conceded to the jurisdiction of the Foreign
Court?

3. Whether the principle of Res-Judicata under Section 11 of Code of Civil

Procedure, 1908 is applicable to the proceedings being initiated in District
Court, Jalandhar?

ARGUMENT
After moving to New York, Respondent severed all his contacts with

petitioner. Respondent has developed an extra marital affair with a lady

named Elizabeth Prescott. In January 2012, Petitioner wrote a letter to

Respondent expressing her willingness to join Suresh in New York. Respondent

in reply wrote to petitioner that she should not come to New York, as he was

interested in getting their marriage dissolved. In April 2012, he filed a petition

for divorce in Trial Court of New York on the ground that his marriage has

irretrievably broken down.

Petitioner could not contest these proceedings, she having no means to go to

New York. Meanwhile in July 2012, the Trail Court of New York granted a

divorce decree in favour of Respondent . Further, the court ordered that the

husband would pay to the wife and children an amount of Rs. 50,000 per

month for their maintenance. Since Respondent failed to pay maintenance to

wife and children, Petitioner approached the Trial Court of New York through a

letter and prayed that she be provided legal aid. Thereafter, proceedings were

initiated and warrants of arrest were issued against Respondent . She further

said that the ex parte decree of divorce obtained by the husband was not

binding on her and was illegal and that she continues to be the wife of
Respondent . She further asserted that as per the provisions of Hindi Marriage

Act, 1956, the grounds of divorce (on the basis of adultery, cruelty and

desertion) under Section 13 of the Act are available to the wife under the given

set of circumstances. In fact, she is the actual victim, who was being further

victimized by the order of the New York, Trial Court.

Whether the marriage of Prabha and Suresh is valid as per the provisions of

The Hindu Marriage Act, 1955?

Conditions for a Hindu marriage. —A marriage may be solemnized between

any two Hindus, if the following conditions are fulfilled, namely:—

(i) neither party has a spouse living at the time of the marriage;
2
[(ii) at the time of the marriage, neither party—

(a) is incapable of giving a valid consent to it in consequence of unsoundness of

mind; or

(b) though capable of giving a valid consent, has been suffering from mental

disorder of such a kind or to such an extent as to be unfit for marriage and the

procreation of children; or

(c) has been subject to recurrent attacks of insanity 3 [***];]

(iii) the bridegroom has completed the age of 4 [twenty-one years] and the bride,

the age of 5 [eighteen years] at the time of the marriage;

Whether non-contest by wife of divorce petition filed by the husband in a

Foreign Court implied that she had conceded to the jurisdiction of the Foreign

Court?

Hindu Couple married under Hindu Marriage Act – settled in a foreign

country – foreign court can grant decree of divorce on ground available

under HMA with consent of the parties.

Whether the principle of Res-Judicata under Section 11 of Code of Civil

Procedure, 1908 is applicable to the proceedings being initiated in District

Court, Jalandhar?

The doctrine of res judicata operates as a bar on the jurisdiction of a

court to try a suit which has been conclusively decided by the court with

the same parties, same subject matter and under the same title. All

these provisions are provided under section 11 of the Code of Civil

Procedure,1908.

In which case res judicata is not applicable?

The rule of res judicata would not matter if the decree has been gotten

by rehearsing misrepresentation or fraud on the court, or where the

procedures had been taken all together under an extraordinary Statute.

All the more in this way, every finding in the prior judgment would not

work as res judicata.

PRAYER
 It is , therefore, respectfully prayed that the petitioner file
the petition under section 9 conjugal Right of the Hindu Marriage
Act or pass any other order that the court may deem fit
in the light of equity, justice and good conscience may kindly
be passed in favour of petitioner .

RELEVANT SECTION
Section 9 in The Hindu Marriage Act, 1955

9 Restitution of conjugal rights. — 7 [***] 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 district 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. 8 [ Explanation. —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 [***]
Punjab-Haryana High Court
Smt. Maya Devi vs Kailash Chander on 17 December, 2013

-1-
Civil Revision No.1571 of 2006

IN THE HIGH COURT OF PUNJAB AND

HARYANA AT
CHANDIGARH

Ci
vil Revision No.1571 of 2006
Re
served on 22.10.2013
Da
te of decision: 17.12.2013

Smt. Maya Devi

....Petitioner
Versus

Kailash Chander

....Respondent

CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH

1) Whether Reporters of the local

papers may be allowed to see
the judgment ?
Yes
2) To be referred to the Reporters
or not ? Yes
3) Whether the judgment should be
reported in the Digest ? Yes
 Argued by: -
Mr. S.R. Hooda, Advocate, for the
petitioner.
None for the respondent.
*****

PARAMJEET SINGH, J.

Instant revision petition has been filed by petitioner- wife/decree-holder for quashing the
order dated 08.12.2005 passed by learned Additional District Judge, Sonepat, whereby
the application under Sections 47 and 51 and Order 21 Rule 32 CPC read with provisions
of Hindu Marriage Act (for short 'HMA') for recording satisfaction of the decree passed
in favour of the petitioner, filed by respondent-husband/judgment-debtor, has been
allowed.

The short questions involved in the present revision petition are as under: -

"1. Whether the decree under Section 9 of the Hindu Singh Ravinder 2014.01.06 11:52 I
attest to the accuracy and integrity of this document Chandigarh Civil Revision No.1571
of 2006 Marriage Act (hereinafter referred to as 'the Act') can be got executed by the
judgment-debtor and consequential satisfaction of the decree for restitution of conjugal
rights under Order 21 Rules 32 and 33 CPC can be recorded?

2. Whether in the present case recording of the decree as satisfied is perverse and not
sustainable in the eyes of law?

Brief facts of the case are that petitioner - Smt. Maya Devi filed a petition under Section 9
of HMA for restitution of conjugal rights. The said petition was allowed on 10.01.2003
and a decree for restitution of conjugal rights was passed in favour of the petitioner.
When petitioner filed an execution application for recovery of arrears of maintenance,
then the respondent - Kailash Chander/judgment-debtor filed an application before the
learned Additional District Judge, Sonepat, for recording satisfaction of decree passed
under Section 9 of the Act in favour of the petitioner. The respondent averred in the
application that after passing of the decree for restitution of conjugal rights, he waited for
arrival of his wife i.e. the present petitioner for 15 days but she did not turn up to her
matrimonial house. Thereafter respondent/judgment-debtor along with his grandfather
Kirpal Singh and other persons went to the house of the parents of the petitioner at village
Kalupur and asked the petitioner to accompany the respondent but she refused. They
came back and again the petitioner was requested to accompany the respondent and take
care of the children but she did not bother. It was alleged in the execution application that
Singh Ravinder 2014.01.06 11:52 I attest to the accuracy and integrity of this document
Chandigarh Civil Revision No.1571 of 2006 respondent/judgment-debtor was ready and
willing to keep the petitioner with him as his wife. Instead of joining the respondent she
filed an application under Section 125 Cr.P.C. for maintenance just to harass the
judgment-debtor. Thereafter the application was presented by the judgment-debtor with a
request for recording satisfaction of the decree passed under Section 9 of HMA.

On notice, the petitioner appeared before the executing Court and contested the
application by filing reply to the effect that her husband/respondent/judgment-debtor is a
person of bad habits. He used to beat her. Neither the respondent nor his grandfather or
any other person of his family went to her village as alleged and the execution application
has been filed on false grounds just to frustrate the petitioner's right of maintenance and
even the maintenance to the extent of Rs.11800/-, which was awarded by the Court at the
time of deciding the petition under Section 9 of the Act, was not paid to the petitioner. It
was also specifically pleaded that respondent/judgment-debtor had contracted a second
marriage with Jai Wanti and it has become difficult for the petitioner to live with the
respondent. Coupled with his behavior, she has reasonable excuse to withdraw from his
society and the stand taken by the respondent to the contrary was controverted by the
petitioner/decree-holder.

In pursuance of the pleadings of the parties, executing Court framed the following issues:
-

"1. Whether the decree of restitution of conjugal rights in Singh Ravinder 2014.01.06
11:52 I attest to the accuracy and integrity of this document Chandigarh Civil Revision
No.1571 of 2006 favour of D.H. has been satisfied? OPJD

2. Whether the present application is not maintainable in the present form? OPDH

3. Relief."

In order to support her claim, petitioner appeared as RW-1 and also examined Jogi Ram
and Raj Kumar as RW-2 and RW-3, respectively. Respondent examined himself as AW-1
and also examined his grandfather Kirpal Singh as AW-2 and mother Smt. Pataso as AW-
3.

Learned executing Court after considering the evidence on record, recorded a finding
against the petitioner and decided issue No.1 in favour of the respondent/judgment-debtor
and issue No.2 was also decided against the petitioner and in favour of the respondent.
Ultimately a finding was recorded under Order 21 Rule 32 CPC with regard to
satisfaction of decree for restitution of conjugal rights.

I have heard learned counsel for the petitioner and perused the record.

Learned counsel for the petitioner vehemently contended that the findings recorded by
learned executing Court are not sustainable in the eyes of law and are perverse.

Learned executing Court has recorded following finding: - ".....It is clear from the
statement of Maya Devi that she is not interested to accompany her husband Kailash
Chander as he has contracted a second marriage. But the fact of second marriage is no
ground for disobeying the decree for restitution of conjugal rights. If her husband has
effected a second marriage, then she can get him prosecuted U/s 498 Singh Ravinder
2014.01.06 11:52 I attest to the accuracy and integrity of this document Chandigarh Civil
Revision No.1571 of 2006 IPC but she has to obey the decree. Even she has not followed
the instruction or the order issued by the commanding officer of the J.D., who has also
given an assurance for keeping her properly and nicely under the safeguard of Dy.
Commandant. Thus from this, inference can be drawn that she is not willing to
accompany her husband intentionally." Learned counsel for the petitioner vehemently
contended that in view of specific finding regarding second marriage by the respondent,
the impugned judgment is not sustainable. Contracting of second marriage amounts to
cruelty, if not physical certainly mental cruelty. Learned counsel further contended that
second marriage itself is a reasonable cause for withdrawal from the society of the
husband. In fact, by his own act and conduct the respondent made it impossible for
petitioner to obey the decree. Being himself at fault decree could not have been recorded
as satisfied at his instance. The observation of the learned executing Court that petitioner
has remedy under Section 498 IPC is erroneous as it is not the remedy which will lead to
satisfying the decree for restitution of conjugal rights. The order of the commanding
officer and giving assurance by him is not sufficient for the decree- holder to say that
decree stood satisfied rather the judgment-debtor is at fault and recording of decree as
satisfied at his instance is perverse and not sustainable in the eyes of law.

None appeared on behalf of the respondent to address the arguments.

I have considered the contentions raised by learned counsel for Singh Ravinder
2014.01.06 11:52 I attest to the accuracy and integrity of this document Chandigarh Civil
Revision No.1571 of 2006 the petitioner.

Admittedly, the decree for restitution of conjugal rights was in favour of the petitioner
and the execution application was filed by the judgment-debtor to record its satisfaction.
Admittedly, after the passing of the decree there was no resumption of conjugal rights
between the parties. There appears to be no direct provision in the Code of Civil
Procedure wherein the judgment-debtor can seek execution of decree. The general notion
is if a decree is passed against a party then the decree-holder can seek enforcement of the
same against the judgment- debtor.

Before I deal with the contentions raised by learned counsel for the petitioner, it would be
appropriate to reproduce some of the relevant provisions of HMA and Code of Civil
Procedure.

Section 9 of HMA reads as under:-

"9. Restitution of conjugal rights. - 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 district 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."

Section 2(2) CPC defines the decree, which reads as under: - "decree" means the formal
expression of an adjudication which, so far as regards the Court expressing it,
conclusively determines the rights of the parties with regard to all or any of the matters in
controversy in the suit and may be either Singh Ravinder 2014.01.06 11:52 I attest to the
accuracy and integrity of this document Chandigarh Civil Revision No.1571 of 2006
preliminary or final. It shall be deemed to include the rejection of a plaint and the
determination of any question within section 144, but shall not include -

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default."

Section 2(3) CPC reads as under: -

"decree-holder means any person in whose favour a decree has been passed or an order
capable of execution has been made."

Section 2(9) CPC defines the judgment, which reads as under: "judgment means the
statement given by the Judge on the grounds of a decree or order."

Section 2(10) CPC reads as under: -

"judgment-debtor means any person against whom a decree has been passed or an order
capable of execution has been made."

Order 21 Rules 32 and 33 CPC, which deal with the decree for specific performance, for
restitution of conjugal rights or for injunction, reads as under: -

"32 . Decree for specific performance for restitution of conjugal rights, or for an
injunction-- (1) Where the party against whom a decree for the specific performance of
a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has
had an opportunity of obeying the decree and has wilfully failed to obey it, the decree
may be enforced in the case of a decree for restitution of conjugal rights by the
attachment of his property or, in the case of a decree for the specific performance of a
contract or for an injunction by his detention in the civil prison, or by the Singh Ravinder
2014.01.06 11:52 I attest to the accuracy and integrity of this document Chandigarh Civil
Revision No.1571 of 2006 attachment of his property, or by both.

(2) Where the party against whom a decree for specific performance or for an
injunctions been passed is a corporation, the decree may be enforced by the attachment
of the property of the corporation or, with the leave of the Court by the detention in the
civil prison of the directors or other principal officers thereof, or by both attachment and
detention.

(3) Where any attachment under sub-rule (1) or sub-rule (2) 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. (4) Where
the judgment-debtor has obeyed the decree and paid all costs of executing the same
which he is bound to pay, or here, at the end of six months from the date of the
attachment, no application to have the property sold has been made, or if made has
been refused, the attachment shall cease. (5) Where a decree for the specific
performance of a contract or for an injunction has not been obeyed, the Court may, in
lieu of or in addition to all or any of the processes aforesaid, direct that the act required
to be done may be done so far as practicable by the decree-holder or some other person
appointed by the Court, at the cost of the judgment-debtor, and upon the act being
done the expenses incurred may be ascertained in such manner as the Court may direct
and may be recovered as if they were included in the decree.

33 . Discretion of Court in executing decrees for restitution of conjugl rights-- (1)

Notwithstanding anything in rule 32, the Court, either at the time of passing a decree
against a Singh Ravinder 2014.01.06 11:52 I attest to the accuracy and integrity of this
document Chandigarh Civil Revision No.1571 of 2006 husband for the restitution of
conjugal rights or at any time afterwards, may order that the decree shall be executed in
the manner provided in this rule.

(2) Where the Court has made an order under sub-rule (1), it may order that, in the event
of the decree not being obeyed within such period as may be fixed in this behalf, the
judgment-debtor shall make to the decree-holder such periodical payments as may be just,
and, if it thinks fit, require that the judgment-debtor shall, to its satisfaction, secure to the
decree-holder such periodical payments. (3) The Court may from time to time vary or
modify any order made under sub-rule (2) for the periodical payment of money, either by
altering the times of payment or by increasing or diminishing the amount, or may
temporilay suspend the same as to the whole or any part of the money so ordered to be
paid, and again review the same, either wholly or in part as it may think just.

(4) Any money ordered to be paid under this rule may be recovered as though it were
payable under a decree for the payment of money."

A combined reading of the abovesaid substantive as well as procedural provisions

relating to the grant of relief of restitution of conjugal rights by the Courts makes it clear
that decree for conjugal rights granted under Section 9 of HMA can be enforced under
Order 21 Rules 32 and 33 CPC by applying various types of sanctions, including financial
sanctions against the disobeying party. Additionally, always a Court can enforce its
decree through its contempt powers. The judicial committee of the privy council in
Moonshed Buzloo Rhueem v. Shumsoon Nissa Begum, (1867) 11 Moo Ind App 551,
held that a suit Singh Ravinder 2014.01.06 11:52 I attest to the accuracy and integrity of
this document Chandigarh Civil Revision No.1571 of 2006 for restitution of conjugal
rights filed by a Muslim husband was rightly filed as a suit for specific performance, it is
on the same lines that Order 21 Rule 32 of the Code of Civil Procedure speaks of a decree
granted for restitution of conjugal rights as a decree of specific performance or restitution
of conjugal rights. Conjugal rights connote two ideas. (A) "the right which husband and
wife have to each other's society and (B) "marital cohabitation". An offer by the husband
to live under the same roof with his wife, each party being free from molestation by the
other was held not an offer to matrimonial cohabitation. In other words, sexual
cohabitation is an inseparable ingredient of a decree for restitution of conjugal rights. It
follows, therefore, that a decree for restitution of conjugal rights passed by a civil Court
extends not only to the grant of relief to the decree holder to the company of the other
spouse, but also embraces the right to have marital cohabitation. Relief of restitution of
conjugal rights fraught with such serious consequences to the concerned individual
granted under Section 9 of the Act enables the decree-holder through application of
financial sanctions provided by Order 21 Rules 32 and 33 CPC to have sexual
cohabitation with an unwilling party even by imprisonment in a civil prison. Non-
compliance of the unwilling party to such a decree is sought to be procured, by applying
financial sanctions by attachment and sale of the property of the recalcitrant party. But the
purpose of a decree for restitution of conjugal rights in the past as it in the present
remains the same which is to coerce through judicial process the unwilling party to have
marital Singh Ravinder 2014.01.06 11:52 I attest to the accuracy and integrity of this
document Chandigarh Civil Revision No.1571 of 2006 cohabitation against that person's
consent and freewill with the decree- holder.

I have my own doubts that decree of restitution of conjugal rights thus enforced offends
the inviolability of the body and the mind subjected to the decree and offends the integrity
of such a person and invades the marital privacy and domestic intimacies of such a
person, which will be dealt with in appropriate proceedings.

Human society rests on two basic institutions i.e. family and marriage. Marriage is often
regarded as a primary institution in our society. Certain norms and rules govern the
society and with the passage of time develop into customs and usages. Under Hindu Law,
marriage is a union imposing upon each of the spouse certain marital duties and gives to
each of them certain legal rights. The necessary implication of the marriage is that parties
will live together. Each spouse is entitled to comfort-consortium of each other. After
solemnization of marriage, if either of the spouse, without reasonable excuse, withdraws
himself or herself from the society of the other, then aggrieved party has a legal right to
file petition under Section 9 of HMA. Non-compliance of the decree granted results into
constructive destruction on the part of erring spouse. The decree of restitution of conjugal
rights can be enforced by attachment of the property/financial sanctions and if the party
still does not comply, the Court may punish him or her for contempt of Court but under
no circumstances the Court can enforce the erring spouse to consummate the marriage.
As stated by Paras Diwan, the remedy of Singh Ravinder 2014.01.06 11:52 I attest to the
accuracy and integrity of this document Chandigarh Civil Revision No.1571 of 2006
restitution of conjugal rights was neither recognized by the Dharmashastra nor did the
Muslim law made any provisions for it, it has its roots in feudal England where the
marriage was considered as a property deal and wife was part of man's possession like
other chattels. The concept of restitution of conjugal rights was introduced in India in the
case of Moonshee Buzloor Ruheem (supra) where such actions were regarded as
considerations of specific performance. Now-a-days the remedy is available under the
Hindu Law under Section 9 of HMA.
In the light of these facts, now I would proceed to answer the questions set at the outset .

Re: question No.1 A decree for restitution of conjugal rights under Section 9 of the Act is
a mutually obligatory decree; purpose being to get the spouses join to lead conjugal
rights. The fundamental rule of matrimonial law is that the spouse is entitled to the
society, comfort-consortium of the other spouse. When either spouse has abandoned or
withdrawn from the society of the other spouse without a reasonable excuse or just cause
then the Court can grant a decree for restitution of conjugal rights and the same can be
executed as contemplated under Order 21 Rules 32 and 33 CPC.

In M.P. Shreevastava vs. Mrs. Veena, AIR 1967 SC 1193 the Hon'ble Supreme Court had
the occasion to consider the controversy somewhat similar to one involved in instant
revision wherein it considered the provisions of Section 47 and Order 21 Rule 2 and
Order Singh Ravinder 2014.01.06 11:52 I attest to the accuracy and integrity of this
document Chandigarh Civil Revision No.1571 of 2006 41 Rule 2 CPC that had arisen
from an appeal under the Special Marriage Act. It would be appropriate to mention
that Section 9 of the Act and Section 22 of the Special Marriage Act, 1954 are peri
materia. In that case, the respondent-wife/judgment-debtor approached the Court for
recording of satisfaction of decree under Section 47 read with Order 21 Rule 2 CPC. The
District Judge, Delhi, held that the decree for restitution of conjugal rights against the
respondent stood satisfied and ordered that it be recorded that the decree was satisfied.
The husband went in appeal and the High Court confirmed the order of the District Judge.
Letters Patent filed by the husband also failed and thereafter the husband/decree-holder
appealed to the Hon'ble Supreme Court, which was ultimately dismissed. In that case the
wife was respondent/judgment-debtor; the decree was passed ex parte in favour of the
husband/decree-holder but the execution was filed by the wife for recording satisfaction
of the decree, which was allowed upto Hon'ble Supreme Court. From the ratio of law laid
down by Hon'ble Supreme Court, it is clear that party against whom a decree for
restitution of conjugal rights is passed can make application to the executing Court to
comply with the decree. In view of the law laid down by Hon'ble Supreme Court as well
as this Court, it is clear that either party can file execution application for recording
satisfaction of the decree. Once the decree for restitution of conjugal rights is passed and
one party has departed away from the decree then the other spouse can have liberty to get
the decree satisfied in its proper way. Accordingly, it is held that the Singh Ravinder
2014.01.06 11:52 I attest to the accuracy and integrity of this document Chandigarh Civil
Revision No.1571 of 2006 judgment-debtor has also right to get recorded that the decree
stood satisfied.

Re: question No.2 Now I will deal with the question whether in the present case findings
recorded by the executing Court regarding recording satisfaction of decree at the instance
of the husband are sustainable in the eyes of law or not.

Finding of the executing Court recapitulated above clearly indicates that even if the
husband has contracted the second marriage then the wife was obliged to comply with the
decree under Section 9 of the Act. Once there is sufficient evidence that respondent-
husband/judgment-debtor has contracted second marriage with Jai Wanti, then burden of
proof "whether excuse for withdrawal from the society is a valid reason" shall be on the
person who asked for satisfaction of decree. This is clear from Section 23(1) of the HMA
and the burden certainly shifts on the husband. The word "society" here corresponds to
cohabitation and "withdrawal" signifies cessation of that cohabitation bringing to end the
consortium. Once there is second marriage by the husband, it certainly amounts to mental
cruelty, if not physical, which is one of the grounds for divorce; as such is a reasonable
excuse to withdraw from the society of the husband and the observation of the executing
Court that petitioner should have proceeded under Section 498 IPC, is not a substitute for
that. This is an independent remedy. When the husband is contracting second marriage,
he is Singh Ravinder 2014.01.06 11:52 I attest to the accuracy and integrity of this
document Chandigarh Civil Revision No.1571 of 2006 certainly causing mental cruelty to
wife and is apparently totally unresponsive towards his matrimonial obligations. Such a
behaviour is sufficient which may warrant withdrawal from the society by wife. The basic
defence for withdrawal is based on the principle which lies in the concept of "reasonable
excuse". I hold that the petitioner has withdrawn from the society of her husband for a
valid reason and the findings recorded by the executing Court are perverse in so far as it
directed petitioner to join company of respondent and recorded decree as satisfied at the
instance of faulting party who by his own conduct made the compliance of decree
impossible for the decree-holder. Such findings of the executing Court have the effect of
giving undue benefit to the erring spouse of his own fault. Bigamy is prohibited under
law and is in violation of the statutory provisions. In the circumstances of the case, wife
could not have been compelled to live with the husband and it would have been unjust
and unreasonable to do so and would amount to inequitable order for recording
satisfaction of the decree. "One can take a horse to the water but one cannot make him to
drink" is a famous proverb and the provision for restitution of conjugal rights under the
Act as well as the Special Marriage Act seem to be akin to that. It is to be noted that
Court cannot compel the defaulting spouse to physically return to the comfort-consortium
of the decree-holder spouse. In view view of the above discussion, the findings of the trial
Court are result of misreading of the provision of law and are as such perverse.

The very important feature of the restitution of conjugal rights Singh Ravinder
2014.01.06 11:52 I attest to the accuracy and integrity of this document Chandigarh Civil
Revision No.1571 of 2006 is in the nature of remedy aimed at preserving the marriage not
disrupting it. The Section appears to serve the purpose of prevention of the breakup of
marriage and can be termed as an attempt to save the marriage. The basic spirit of Section
9 of HMA is promoting reconciliation between the parties and maintenance of
matrimonial life and ultimately protecting the society from degenerating but final
decision always rests with the parties either to obey such decree to continue with the
matrimony or not.

In view of findings on second question, revision petition is allowed and the impugned
order is set aside.

No order as to costs.

(Paramjeet Singh) Judge December 17, 2013 RS

Singh Ravinder 2014.01.06 11:52 I attest to the accuracy and integrity of this document
Chandigarh