Vikram Singh v. Srimati Vidya Devi — 1974 DIGILAW 436 (ALL)

JUDGMENT K. N. Seth, J. - Smt. Vidya Devi filed a petition in the court of the District Judge under Sec. 9 of the Hindu Marriage Act praying for restitution of conjugal rights and a relief for perpetual injunction restraining defendant Nos. 1 and 2 from marrying defendant No. 1 with the daughter of defendant No. 3 or other girl. The petitioner claimed to be the wedded wife of Vikram Singh and alleged that the husband had departed her and in spite of repeated requests defendant Nos. 1 and 2 did, not arrange to call her from the house of her parents and they illegally demanded a sum of Rs. 40,000/-. The matter was brought before a Panchayat but the defendants continued to avoid the Bida of the petitioner. It was further alleged that defendant No. 2 had arranged the marriage of defendant No. 1 with the daughter of defendant No. 3. 2. The petition was contested by defendant Nos. 1 and 2 alone. The factum of marriage between the petitioner and defendant No. 1 was admitted. It was, however, alleged that it was the wife who had deserted the husband as she had developed illicit connection with others. 3. The parties moved a joint application, which was also signed by their counsels, praying that their dispute be referred to the arbitration of Sri Ram Charan Dube, Advocate, Orai. The court allowed the application and appointed Sri Ram Charan Dube, Advocate as Arbitrator, who was directed to submit his award within two months. The time was subsequently extended on the application of the Arbitrator. Sri Dube ultimately filed his award in court on 17-8-1971. 4. The contesting defendants filed objections against the award. The learned District Judge rejected the objections and confirmed the award and a decree for restitution of conjugal rights in terms of the award followed. 5. The first objection to the validity of the award raised in the court below was that the Arbitrator made the award beyond the period fixed by the court. In the order dated 15-5-1971 the Arbitrator was directed to submit his award within two months. Subsequently time for filing the award was extended upto 17-8-1971 on the request of the Arbitrator. It was open to the court to extend the time for filing the award. No exception could be taken on that score. The award was filed within the extended time. Subsequently time for filing the award was extended upto 17-8-1971 on the request of the Arbitrator. It was open to the court to extend the time for filing the award. No exception could be taken on that score. The award was filed within the extended time. The court below rightly rejected this objection of the appellants. 6. Another objection raised was that the Arbitrator did not accept the evidence sought to be adduced by the defendants and also did not allow them to cross-examine the petitioner and her witnesses. The learned District Judge has dealt with this objection in considerable detail and I agree with the conclusion arrived by him that the defendants failed to substantiate their allegations. Vikram Singh was examined before the court and from his testimony it is apparent that he had no personal knowledge of the allegations contained in the objection and came forward to depose only on the basis of the information conveyed to him by his father. On the date of evidence the father was present in court but the defendants did not put him in the witness box. Vikram Singh alleged that he wanted to produce a letter before the arbitrator but it was illegally refused to be accepted in evidence. The arbitrator, who was examined as a court witness, denied on oath that any letter was sought to be produced by Vikram Singh and that he had refused to accept it in evidence. The letter was presented in court. Vikram Singh, however, admitted in his statement that he did not know who sent or wrote that letter to him. In view of that statement that letter could have been of no evidentiary value. It may be noted that there was no plea in the written statement that the petitioner was unchaste. The court below appears to be fully justified in arriving at the conclusion that in all probability this letter had been concocted subsequently in order to damage the petitioners case by attempting to show that she was unchaste. Sri Ram Charan Dube in his statement in court denied the defendants allegation that their witnesses were not allowed to be produced and that they were not afforded any opportunity to cross-examine the witnesses examined by the petitioner. I find no reason to disbelieve the Arbitrator. 7. Sri Ram Charan Dube in his statement in court denied the defendants allegation that their witnesses were not allowed to be produced and that they were not afforded any opportunity to cross-examine the witnesses examined by the petitioner. I find no reason to disbelieve the Arbitrator. 7. The main contention raised by the learned counsel for the appellants is that the dispute relating to restitution of conjugal rights could not be referred to arbitration and the decree that followed the award was, therefore, a nullity. In support of this contention reliance was placed on Nathu v. Sarnun, A.I.R. 1933 Lahore 532 and Malka v. Sardar, A.I.R. 1929 Lahore 394. Learned counsel conceded that there was no express bar or prohibition to that effect either in the Hindu Marriage Act or the Arbitration Act. It was, however, contended that the matter was of such a nature that it had to be decided only by the court. I have carefully examined the contention raised by the appellants but do not consider it tenable. Sec. 21 of the Arbitration Act provides :- "Where in any suit all the parties interested agree that any matter indifference between them in the suit shall be referred to arbitration, they may at any time before judgment is pronounced apply in writing to the court for an order of reference." This provision is applicable to every type of dispute which may be the subject-matter of a suit. There is no prohibition, express or implied, with regard to any particular type of dispute which may not he the subject-matter of a reference to arbitration. The right to obtain a decree for restitution of conjugal rights or a decree for judicial separation or divorce is conferred by .the Hindu Marriage Act. This right can be enforced through court like any other right of a civil nature which has its origin in common law or is a right conferred by statute. One may accept and cherish the ancient concept that marriages are arranged in heaven and solemnised on earth and a Hindu marriage may be treated as a sacrament or a Sanskara but the right to obtain a decree for restitution of conjugal rights or judicial separation and divorce is conferred by statute and an aggrieved party is entitled to enforce that right through court. If that dispute could be the subject-matter of a suit or a petition, I see no justification for holding that that dispute cannot be referred to arbitration in view of the fact that no such prohibition, express or implied, is contained either in the Hindu Marriage Act or in the Arbitration Act. It is true that certain conditions have to be satisfied before a court may grant a decree for restitution of conjugal rights or judicial separation or divorce but that would not prevent the parties from agreeing to refer their dispute to an Arbitrator. The award would have the same legal sanctity as the decision of the, court. 8. The question whether a dispute relating to restitution of conjugal rights could be referred to arbitration was considered by the Oudh Chief Court in Rup Narain v. Mt. Nandrani, A.I.R. 1934 Oudh 494. A Division. Bench of that Court, on an analysis of Schedule II Civil Procedure Code, held that such a dispute could be settled by arbitration. To the same effect is the view taken by a Bench of Peshawar High Court in Mt. Kunti Devi v. L. Bhola Ram, A.I.R. 1941 Peshawar 43, wherein it was observed that there was nothing in Schedule II Civil Procedure Code to prevent a reference of the whole suit for restitution of conjugal rights to arbitration and to a decree being passed in accordance with the award. The Lahore cases referred to earlier were based on an earlier Lahore case reported in Hira v. Dina, (1895) 37 P.R. 1895, in Hira's case the point which really persuaded the Judges to set aside the reference was that the parties were minors and that the court had not given a sanction under Order 32, Rule 7, Civil Procedure Code, for reference to arbitration. The observation made in that case that the Court was not competent to delegate to the Arbitrators the question whether or not a claim for custody of a wife should be decreed was only an obiter. In Malka's case what was referred to arbitration was the criminal complaint under Sec. 366/494, I. P. C. and it was observed that a criminal complaint could not be referred to arbitration and, therefore, the award which followed could not be made a rule of a civil court. In Malka's case what was referred to arbitration was the criminal complaint under Sec. 366/494, I. P. C. and it was observed that a criminal complaint could not be referred to arbitration and, therefore, the award which followed could not be made a rule of a civil court. Nathu's case does not appear to contain any reasoning for the proposition that it was not competent to the court to delegate to Arbitrators a suit for the restitution of conjugal rights and such a question was entirely one for the decision of the Court. The decision purported to follow the law laid down in Hira's case and Malka's case. As pointed out earlier those cases did not lay down that a dispute relating to restitution of conjugal rights could not be the subject-matter of a reference to arbitration. 9. It was urged that a decree for restitution of conjugal rights, could be passed only if the court was satisfied that either the husband or the wife has withdrawn from the society of the other and further that such withdrawal has been without reasonable excuse. The court must further be satisfied of the truth of the statement of the petitioner. Another requirement was that there should be no legal ground why the relief should not be granted. These conditions were in the nature of condition precedent for the grant of a decree for the restitution of conjugal rights. It was urged that the award of the Arbitration did not satisfy the conditions under which a decree could have been passed against the appellants. This argument loses sight of the fact that in the present case the decision is by an Arbitrator who is not required by any law to discuss the evidence of the parties, record clear findings on every issue raised in the case and set out reasons for the conclusion arrived at. An Arbitrator is not required to write out a detailed judgment like a court of law, which is governed by the provisions of the Code of Civil Procedure, which provide detailed rules with regard to the trial of a suit resulting ultimately in a judgment followed by a decree. An Arbitrator is not even bound by the law of evidence. If the parties so agree, an Arbitrator may give his award solely on the basis of his personal knowledge or on private enquiries made by him. An Arbitrator is not even bound by the law of evidence. If the parties so agree, an Arbitrator may give his award solely on the basis of his personal knowledge or on private enquiries made by him. The function of the Arbitrator and the rules that guide him being different in nature from the rules which govern the proceedings in court, the award cannot be challenged on the ground that it does not set out in certain specified terms the findings arrived at which form the basis of the ultimate decision. In the present case the Arbitrator, on the basis of. the admissions made by the parties and the evidence produced by them, held that the petitioner was the legally wedded wife of defendant No. 1. He also arrived to the conclusion that the allegation of the defendants that the petitioner was unchaste and had deserted her husband was not established. The only dispute which the Arbitrator was called upon to adjudicate in the case was whether the husband had deserted the petitioner or the wife had become unchaste and had deserted her husband. That the petitioner was the wife of defendant No. 1 was not in dispute. It was also not in dispute that the husband and wife were not living together and one of them was responsible for this situation. The Arbitrator was called upon to decide as to who was responsible for bringing about this situation and he arrived at the conclusion that the responsibility was that of the husband. Having arrived at this conclusion the Arbitrator was competent to give an award in favour of the petitioner. The Arbitrator was not required to express that conclusion in any specified language and the award could no; be invalid because the Arbitrator failed to mention in the award that the husband had withdrawn from the society of the petitioner without any reasonable excuse. Once it was held that the allegations made by the husband for withdrawing from the society of the petitioner were not established, it naturally followed, that such a withdrawal was without reasonable excuse. 10. A number of objections were filed on behalf of the appellants challenging the validity of the award. As pointed out by the learned Judge, objections 3 to 8 were not pressed before him. I have already dealt with the objections which were actually pressed before the learned District Judge. 10. A number of objections were filed on behalf of the appellants challenging the validity of the award. As pointed out by the learned Judge, objections 3 to 8 were not pressed before him. I have already dealt with the objections which were actually pressed before the learned District Judge. Those objections have not been substantiated and the learned Judge was, therefore, justified in dismissing the objections. There being no legal objection against the validity of the award, the learned District Judge was competent to pass a decree in terms of the award. It has not been even alleged much less established, that there existed any legal ground for not granting the decree prayed for. 11. In the result this appeal fails and is dismissed with costs.