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2002 DIGILAW 1216 (PNJ)

Sharda Devi v. Balwinder Singh

2002-11-13

S.S.SARON

body2002
JUDGMENT S.S. Saron, J. - This appeal has been filed by the appellant-wife against the ex parte judgment and decree dated 7.12.1988 for restitution of conjugal rights under Section 9 of the Hindu Marriage Act (hereinafter to be referred as to Act) in favour of the respondent-husband by the learned Additional District Judge, Amritsar. 2. The marriage between the parties was solemnised at Noorpur on 9.8.1984 according to Hindu rites and ceremonies. In the petition under Section 9 of the Act it is averred that the appellant-wife left the house of the respondent-husband at Ram Nagar Amritsar on 25.10.1984 on the pretext that she was going to perform Karva Chauth ceremony at her parents house. She also took away her gold ornaments and other valuable gifts and jewellery including one gold ring weighing 1/2 tola. The respondent-husband waited for her return but she did not return and thus he filed the petitioner for restitution of conjugal rights on 24.3.1986. 3. In the written statement filed by the wife-appellant before the learned trial Court, it is stated that the marriage between the parties in fact had already been annulled by a decree under Section 12 of the Act, in case No. 16 of 1984 by the Court of learned Additional District Judge, Kangra Division, Dharmashala and, therefore, the petition was not maintainable. 4. The respondent-husband filed replication to the petition in which averment regarding the passing of decree for annulment of the marriage under section 12 of the Act is denied for want of knowledge. In other words, the same has not been specifically denied and, therefore, would be deemed to have been admitted. 5. The learned Additional District Judge, Amritsar, passed exparte order granting decree in favour of the husband on 7.12.1988 and ordered restitution of conjugal rights with no order as to costs. 6. This appeal was admitted by his Court on 20.11.1989. As per report of the Registry, respondent has been served but he did not put in appearance. The Registry of this Court against registered letter at the address of the respondent on 1.10.2002 which has been received back with the report that the said person had left the house. In view of the fact that the respondent already stood served earlier in the appeal, the case is taken up for hearing. 7. I have heard Ms. Bhavna Walia, learned counsel for the appellant. In view of the fact that the respondent already stood served earlier in the appeal, the case is taken up for hearing. 7. I have heard Ms. Bhavna Walia, learned counsel for the appellant. She has contended that the marriage having already been annulled by the learned Additional District Judge, Kangra Division at Dharamshala on 13.8.1986, a decree for restitution of conjugal rights ought not to have been passed by the learned Additional District Judge, Amritsar on 7.12.1988. 8. As already noticed above, the impugned judgment and decree is an ex parte decree which has been passed in favour of the respondent. However, the learned trial Court did not advert to the contention raised in the written statement with regard to the marriage having been annulled by a Court of competent jurisdiction. The material averment with regard to the same has not been categorically denied by the respondent-husband. The learned counsel appearing for the appellant has also placed on record a photostat copy of the judgement passed by the learned Additional District Judge (II) Kangra Division at Dharamshala, in Hindu Marriage Petition No. 16 of 1984 which was instituted on 6.12.1984 and decreed on 13.8.1986. In these circumstances, I am of the view that the marrige between the parties having already been annulled by a Court of competent jurisdiction, the impugned decree under Section 9 of the Act ought not to have been passed by the learned trial Court. It is not in dispute that the judgment of a matrimonial Court is a judgment in rem within the meaning of Section 41 of the Indian Evidence Act. 9. For the forgoing reasons, the appeal is allowed and the impugned judgment and decree passed by the learned Additional District Judge, Amritsar, is set aside and the petition for restitution of conjugal. However, in the circumstances of the case, there shall be not order as to costs. Apeal allowed.