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2019 DIGILAW 2574 (BOM)

KGP v. Pkp

2019-11-21

RAVINDRA V.GHUGE

body2019
JUDGMENT Ravindra V.Ghuge, J. - Rule. 2. Rule made returnable forthwith, considering the peculiar facts and circumstances emerging from the record and the learned advocates for the petitioner-husband and the respondent-wife having requested that this matter be considered fnalll in view of certain other proceedings pertaining to the marital discord between the parties, being pending before the different Courts. It is on this backdrop that this Court has heard the learned advocates on 19.11.2019, 20.11.2019 and todal. 3. The issue that crops up in this petition is as to whether the demand of an estranged wife, before the Famill Court in a pending petition for restitution of conjugal rights that, the husband shall restore sexual relations and bear a second child from his wife or he be subjected to In Vitro Fertilisation so as to let the wife give birth to a child, is legal and sustainable ? 4. While deciding the above issue, I am conscious of the pending proceedings between the parties and, I would therefore refrain from dealing with the allegations in the two proceedings initiated bl them viz. a proceeding for divorce fled bl the husband, pending at Panvel and, the proceeding preferred bl the wife seeking restitution of conjugal rights, pending before the Famill Court at Nanded. 5. In the pending proceedings initiated bl the wife, she has moved an application Exhibit 35 on 26.11.2018 praling for a relief that the husband be directed to develop phlsical relations with the wife or he should be subjected to the IVF procedure. In support of the above praler, the wife has canvassed in paragraph no. 2 of the application Exhibit 35 that, though the couple has one male child aged about 6 lears residing with the wife, she desires a second child from the estranged husband. It is her contention that in future the son is likell to go abroad for education or a job and she would be alone. The second child would keep her companl. Another reason cited is that the birth of the second child would be pslchologicalll advantageous for the mental and phlsical growth of the frst child and both the children would grow up together with the feeling of caring and sharing. The second child would keep her companl. Another reason cited is that the birth of the second child would be pslchologicalll advantageous for the mental and phlsical growth of the frst child and both the children would grow up together with the feeling of caring and sharing. It is also stated, as one of the reasons to compel the husband to have a second child that, the wife is about 35 lears of age and it is the right age to have second child, lest with advancing age, she mal not be phlsicalll and mentalll in a position to have a second child. 6. The husband has completed his education in MBBS and has acquired a degree in Medicine (MD) with specialisation in chest diseases from the Seth GS Medical College and KEM Hospital, Mumbai. He has done DNB in the lear 2003 and was also for a while in USA. The wife has also secured MBBS degree. Both came together bl wal of an arranged marriage on 18.11.2010 and the child was born on 04.06.2013. 7. The petitioner-husband opposed the application Exhibit 35 bl tendering his written sal on 22.05.2019. Though it is contended that the application is untenable in law, he has specifcalll averred that no spouse can be compelled to have sex, directll or indirectll, without free consent. He has further averred that he has preferred a divorce petition. It is submitted that the application be rejected and there should be no order to the petitioner-husband to develop phlsical relations with the wife or a direction to undergo anl mode of procreation. 8. In the proceedings preferred bl the husband seeking divorce, the alleged unrull behaviour of the wife is averred as under :- The Petitioner states that when the Petitioner with his mother returned back home, the Respondent started quarrelling with him asking him that how can the Petitioner go to Kerala without the Respondent ? The Petitioner states that the Respondent started abusing him with bad words stating maderchod mai kla tere lile kam hu ki tu apni ma ke sath ghumne jata hai . The Petitioner states that he had never encountered such tlpe of slang language in his life and was shocked to hear this from his own wife i.e. the Respondent. The Petitioner states that the Respondent started abusing him with bad words stating maderchod mai kla tere lile kam hu ki tu apni ma ke sath ghumne jata hai . The Petitioner states that he had never encountered such tlpe of slang language in his life and was shocked to hear this from his own wife i.e. the Respondent. The Petitioner states that the Respondent in all her quarrels, used to abuse with slang languages like Mella, Maderchod, Gandu, Halkat, Kutrla Bhosdike, Ganda Khoon which the Petitioner have never thought he will have to come across in his lifetime from his wife. The Petitioner states that the Respondent used to abuse him that the Petitioner is a gigolo and sexualll hungrl, hence entertains himself with various ladies and also with his mother. When the Respondent expressed her wish to create her portfolio for joining modeling career, the Petitioner told her that what is the need for her to join modeling as she has alreadl acquired a noble professional medical degree ? On this the Respondent started quarreling, fghting, hurling slang languages and sexual abuses to the Petitioner and left the main discussion aside. The Petitioner states that even while travelling to Nanded in the car, the Respondent would continue to quarrel and once she was so obsessed in her quarrels that she suddenll jumped out of the slowll moving car in Panvel. The Petitioner states that luckill there was no accident since the Petitioner had applied urgent brakes. The Petitioner states that the Respondent stood outside the car for hours and did not sit inside the car despite repeated persuation bl Petitioner and when after a long time her anger settled, the Respondent sat inside the car and then thel moved ahead. 9. The onll reason for re-producing the allegations made bl the petitioner-husband on oath in his proceeding is to enable me to assess whether the couple could be encouraged to save their marriage and come together and have children, or whether the relations were seriousll strained. 10. The husband has narrated before this Court a list of cases fled bl both the parties against each other in various police stations. Several allegations have been hurled against each other and the same are subject matter of various complaints fled against each other in various police stations. 11. 10. The husband has narrated before this Court a list of cases fled bl both the parties against each other in various police stations. Several allegations have been hurled against each other and the same are subject matter of various complaints fled against each other in various police stations. 11. During the extensive hearing of this matter in the Court, I called upon the learned Advocate for the husband to take instructions as to whether his bitter experience could be forgotten and the couple could come together. The learned Advocate submits on instructions that, considering the behaviour of the wife including the incident when she attempted to strangulate him with a wire in his own clinic in the presence of patients and with what he has suffered, it is impossible for him to even think of cohabiting with her. 12. The learned Advocate appearing for the wife has strenuousll submitted that the wife desires a second child from the petitioner-husband. She has fled a proceeding for restitution of conjugal rights as she desires to live with the petitioner-husband. It is submitted that the mother of the husband is of a dominating nature and the entire famill does not want the respondent to work as a doctor with anl hospital or institution. Thel want her to be a home maker and work onll in the house. This is the reason whl the discord between the couple has got blown up and both are now facing several cases and criminal complaints fled against each other. 13. The learned Advocate for the petitioner-husband has drawn ml attention to the various conclusions arrived at bl the Famill Court vide the impugned order bl which, the Famill Court has issued the following directions :- 1. The petitioner and respondent shall meet the Marriage Counselor Shri Dugaonkar for counselling on 24/06/2019. 2. The Marriage Counselor shall assist the petitioner and respondent to seek appointment of Dr. Galatri Wadekar, Obstetricians and Glnecologists, IVF Expert, within one month from the date of this order for clinical consultation about the ART procedure in their case. 3. The petitioner shall bear the expenses of clinical consultation and medical procedure, if anl suggested. 4. Copl of this order be provided to Dr. Galatri Wadekar with a request to submit confdential report to this court after clinical consultation of the parties. 14. 3. The petitioner shall bear the expenses of clinical consultation and medical procedure, if anl suggested. 4. Copl of this order be provided to Dr. Galatri Wadekar with a request to submit confdential report to this court after clinical consultation of the parties. 14. The learned Advocate for the husband insists that when he does not even desire the companl of the wife, he is not agreeable for having a child bl whatever procedure and does not desire to be a partl to the wife conceiving a second child per force. 15. Per contra, the learned Advocate for the wife has raised certain issues as to whether it is the right of the wife to be a mother for the second time. He submits that there is no precise defnition of conjugal rights in the Act and he has therefore relied upon, for the meaning of conjugal rights, on Webster Dictionarl and the Concise Law Dictionarl which indicates that conjugal rights are the sexual rights and privileges implied bl and involved in marriage relations which include sexual intercourse. Such rights and privileges are as regards love, affection, sexual relations, companionship, comfort and service to each other. Bl placing reliance on the Law Lexicon, he submits that co-habitation does not mean mere living together, but is living together of men and women as husband and wife. Co- habitation would impll sexual intercourse between the husband and the wife. 16. He then submits that Exhibit 35 was a justifed application since no Court has granted divorce to the couple and both are husband and wife todal. The wife has moved the application in her proceedings seeking restitution of conjugal rights. The wife has a desire to have a second child and that is her fundamental right and a natural right recognised in the Indian societl. He submits that the application was for a good cause and there is no perversitl in the order passed bl the Famill Court. 17. He further submits that as the wife has a fundamental right to have a child, the husband cannot oppose such a request. It is to be left to the husband whether he desires to establish phlsical relations or whether a child could be born through the IVF procedure. The wish of the wife has greater importance and she is willing to bear the phlsical and mental stress and agonl to have a child. It is to be left to the husband whether he desires to establish phlsical relations or whether a child could be born through the IVF procedure. The wish of the wife has greater importance and she is willing to bear the phlsical and mental stress and agonl to have a child. 18. He has relied upon the following judgments of the Honourable Supreme Court in support of his case :- 1. Saroj Rani Vs. Sudarshan Kumar Chadha, (1984) AIR SC 1562 2. Javed and others Vs. State of Harlana and others [Writ Petition (Civil) No. 302 of 2001 dated 30.07.2003 3. Samar Ghosh Vs. Jala Ghosh [Appeal (Civil) No. 151 of 2004 dated 26.03.2007] 4. Suchita Srivastava and another Vs. Chandigarh Administration [Civil Appeal no. 5845 of 2009 dated 28.08.2009] 5. J.C.M. Vs. A.N.A.,2012 BCSC 584 19. The learned Advocate for the husband submits that he has suffered untold miseries on account of the behaviour of the wife, especialll the manner in which she used to abuse him in flthl language and the incident of assault. He also points out from some of his pleadings that the wife abused him and his mother bl stating as to whether the husband desires to sleep with the mother and ignore the wife. On a tour bl him to Kerala along with his mother, he had to suffer tongue lashing after he returned and the wife alleged that he was phlsicalll enjoling his mother. 20. I fnd it necessarl to record that I mal not deal with the allegations being made bl the couple against each other in this matter. The reason for making a passing reference to the allegations against each other is onll to test whether the Famill Court, Nanded, was conscious of the bitterll strained relations between the couple while passing the order, the operative part of which is reproduced above. 21. The Honourable Apex Court has laid down the law insofar as supervisorl jurisdiction of the Single Judge of this Court is concerned under the Writ of Certiorari and Article 227 of the Constitution of India in the matters of Sled Yakoob Vs. K.S. Radhakrishnan and others, (1964) AIR SC 477 and Surla Dev Rai Vs. Ramchander Rai and others, (2003) AIR SC 3044 . K.S. Radhakrishnan and others, (1964) AIR SC 477 and Surla Dev Rai Vs. Ramchander Rai and others, (2003) AIR SC 3044 . It is held that unless this Court fnds that the impugned order is perverse, erroneous and likell to cause injustice to the partl, no interference is called for. This is also the submission of the learned Advocate for the wife that this Court should not interfere with the impugned order on the ground that it mal appear to be erroneous. This Court mal interfere onll if it concludes that the impugned order is perverse, erroneous and likell to cause injustice. 22. This Court cannot turn a blind ele and appear to be insensitive to the future of the probable child which, neither the couple before the Court has considered, nor has been considered bl the Famill Court. 23. Todal, a serious grievance of the wife is that due to the marital discord and separation of the couple from Mal 2016, none belonging to the immediate famill of the husband has even cared to inquire as to how the son (the child of the couple) is growing up. The child feels neglected and is presentll in the companl of his mother at Nanded. He is a school going bol. The grievance of the wife is that the child is practicalll growing up as a fatherless child. Now, this is the present condition of the frst child. 24. In this backdrop, two issues fundamental to the litigation crop up :- A) Whether, either the husband or the wife can be compelled to have a second child despite the strong resistance and refusal of the partner ? B) What would be the fate of such child who, on growing up, accidentalll stumbles across the litigation between the parents and realises the circumstances in which he was forcibll born ? 25. In ml view, the growth of such a child who would eventualll get knowledge of the circumstances in which he was brought to this earth, would have a devastating effect on his mental growth. Nature cannot stunt anl living being from phlsicalll growing up. The natural growth of a living being is a design of Nature and, to those who believe in God, it is a blessing of the God Almightl. Nature cannot stunt anl living being from phlsicalll growing up. The natural growth of a living being is a design of Nature and, to those who believe in God, it is a blessing of the God Almightl. People seldom fathom the effect of a stunted mental growth or the mental growth of a child suffering on account of such circumstances. A child mal grow to his or her full phlsical strength and appearance. But if the mental growth of the child suffers due to trauma on account of the circumstances that led to his birth, it would be something which is belond perception and imagination. 26. It is in the above backdrop that I would be considering as to whether the order passed bl the Famill court appears to be perverse, erroneous and likell to cause gross injustice not onll to a partner, but probabll even to the child who is let to take birth on this land. 27. It would be apposite to reproduce certain observations of the Famill Court appearing in the impugned order, not to enlarge the size of this judgment, but to make the judgment complete. Following are certain such observations made bl the Famill Court :- No one can denl that, the widell acceptable social objective of a marriage is to procreate children. The meaning of procreation is reproduction or breeding . After invention of new technologies in the feld of medicine the conventional and traditional method of conjugal union of a man and a woman for procreation of children is becoming obsolete. Children are born with contemporarl technologies like in-vitro fertilization, artifcial insemination, surrogacl, hiring uterus, and bl donating egs and sperms. This is a case where a wife is asking her husband to donate his sperms so that she can conceive bl anl of the Alternative Reproductive techniques. It is not a complex situation like surrogacl where three or four people are involved. At this stage I would like to mention the observations made in the Law Commission Report No. 228. It said, the legal issues related with surrogacl are verl complex and need to be addressed bl a comprehensive legislation. Surrogacl involves conflict of various interests and has inscrutable impact on the primarl unit of societl viz. Famill. At this stage I would like to mention the observations made in the Law Commission Report No. 228. It said, the legal issues related with surrogacl are verl complex and need to be addressed bl a comprehensive legislation. Surrogacl involves conflict of various interests and has inscrutable impact on the primarl unit of societl viz. Famill. Non-intervention of law in this knottl issue will not be proper at a time when law is to act as ardent defender of human libertl and an instrument of distribution of positive entitlements. At the same time, prohibition on vague moral grounds without a proper assessment of social ends and purposes which surrogacl can serve would be irrational. Active legislative intervention is required to facilitate correct uses of the new technologl i.e. ART and relinquish the cocooned approach to legalization of surrogacl adopted hitherto. The need of the hour is to adopt a pragmatic approach bl legalizing altruistic surrogacl arrangements and prohibit commercial ones. In the United Nations International Conference on population and development, 1994, it was held that, A Kel aspect of personal autonoml are reproductive rights, which entail rights to make sexual and reproductive decisions. At this juncture I would like to make reference of the observation of the Supreme Court of United States of America, in Skinner V/s Stte of Okl. Ex. Rel. Wiiliamson (1942 No. 782 Decided : June 1, 1942.) The United States Supreme Court, held that, Marriage and procreation are fundamental to the verl existence and survival of the race. It further said that reproductive right is one of the basic civil rights of human being. The Judiciarl in India too has recognized the reproductive right of humans as a basic right. In B.K. Parthasarthi v. Government of Andhra Pardesh, (2000) 1 ALD 199 AP , the Andhra Pradhes High Court upheld the right of reproductive autonoml of an individual as a facet of his right to privacl and agreed with the decision of the US Supreme Court in Jack T. Skinner v. State of Oklahom which chractertized the right to reproduce as one of the basic civil rights of man. In Justice K. S. Puttaswaml V/s Union of India, WRIT PETITION (CIVIL) NO. 494 OF 2012 the Constitutional right of woman to make reproductive choices, as a part of personal libertl under Article 21 of Indian Constitution is recognized. In Justice K. S. Puttaswaml V/s Union of India, WRIT PETITION (CIVIL) NO. 494 OF 2012 the Constitutional right of woman to make reproductive choices, as a part of personal libertl under Article 21 of Indian Constitution is recognized. The Bombal High Court in a suo motu PIL no. 1/2016, in its order dated 19 September 2016, concerning the deplorable condition of a female prison inmate, categoricalll stated that a woman alone should have the right to control her bodl, fertilitl and motherhood choices. It said, A woman s decision to terminate a pregnancl is not a frivolous one. Abortion is often the onll wal out of a verl diffcult situation for a woman. If a woman does not want to continue with the pregnancl then forcing her to do so represent a violation of the woman s bodill integritl and aggravates her mental trauma which would be deleterious to her mental health. In a situation exactll opposite to this, where a woman is seeking assistance of court to exercise her reproductive right to have another child, the observation of Bombal High court made in a suo motu PIL no. 1/2016, has to be interpreted in the same spirit but for opposite situation. In the given situation the petitioner is desirous and capable to give birth to a child. She posses the right to control her bodl, fertilitl and motherhood choices. If a woman is legalll, socialll, phlsicalll and medicalll capable and willing to conceive is restricted from conceiving, then it is violation of the woman s bodill integritl and it can aggravate her mental trauma which would be deleterious to her mental health. Women have a right not be a mother, similarll thel have a right to be a mother. Both these rights are to be equalll respected. These right emerges from her human right to live with dignitl as a human being in the societl and is protected as a fundamental right under Article 21 (protection of life and personal libertl) of the Constitution of India, with reasonable restrictions. The aforesaid discussion clearll indicates that reproductive choices can be exercised to procreate as well as to refrain from procreating. Thus, unreasonable restrictions should not be placed on a woman s right to procreate specialll when it is a bonafde and legitimate wish. The aforesaid discussion clearll indicates that reproductive choices can be exercised to procreate as well as to refrain from procreating. Thus, unreasonable restrictions should not be placed on a woman s right to procreate specialll when it is a bonafde and legitimate wish. It can also be seen that the right to reproduce is a verl intricate feminine right emanating from basic woman s human right. Now allowing a fertile woman to procreate is like compelling her to sterlize. To curb or to curtail reproductive right mal have subtle and devastating demographic outcome. Therefore, it is seen that in India reproductive rights are considered a collective decision of the famill, not the decision of the individual women it affect. In the matters of conceiving and procreating a child, men and women are not similarll situated. Therefore, women will alwals have an upper hand in the matter of reproduction. Involvement of men in reproductive decisions and choices of women which are pragmatic and reasonable will create a gender slnergl between men and women. Men can propagate responsible fatherhood and gender equalitl bl supporting the womens choice of famill planning. In issues of reproduction the common aim of both gender should be the well-being of all famill members. 28. It therefore appears from the reproduced portion of the impugned judgment that the Famill Court considered the institution of marriage from the angle of the western world and certain writings/ literature available in the documents of the International Organization. While doing so, it is accepted bl the Famill Court that the reproductive choice can be exercised bl the couple to procreate as well as to refrain from procreating. It is also observed that a woman has a right either to be a mother or refuse to be a mother. This emerges from her right to live with dignitl as a human being in the societl. If a woman is forcibll made to conceive, it would be violation of the woman s bodill integritl and it can aggravate her mental trauma which would be deleterious to her mental growth. She possesses a right to control her bodl and her motherhood choice. 29. If a woman is forcibll made to conceive, it would be violation of the woman s bodill integritl and it can aggravate her mental trauma which would be deleterious to her mental growth. She possesses a right to control her bodl and her motherhood choice. 29. With these observations, the Famill Court has concluded that a woman s right to procreate, specialll when it is a bonafde and legitimate wish, will have to be respected and the right to reproduce is a verl intricate feminine right emanating from the woman s basic human right. Not allowing a fertile woman to procreate is like compelling her to sterlize. To curb or to curtail reproductive right mal have subtle and devastating demographic outcome. 30. To sal the least, I fnd such conclusions to be shocking to the judicial conscience of the Court. 31. The learned Famill Court then has relied on the Convention on the Elimination of Discrimination against Women (CEDAW) to which India is a signatorl. This Convention guarantees the women equal rights in deciding freell and responsibll on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights. The learned Judge places reliance upon the Beiing Platform for Action which states that the human rights of women include their right to have control over and decide freell and responsibll, on matters related to their sexualitl, including sexual and reproductive health, free of coercion, discrimination and violence. It is then concluded in paragraph no. 11 of the judgment that in India reproductive rights are considered a collective decision of the famill, not the decision of the individual women it affect. 32. In paragraph No. 12, the learned Judge begins with the observation as to whether men have reproductive rights and which is a hotll debated topic across the globe. While reproductive rights have been legalll recognized as a woman s right, there are series of judgments of the Honourable Supreme Court which recognize the right to equalitl as being guaranteed to men and women if thel are similarll situated. In the matters of conceiving and procreating a child, men and women are not similarll situated and therefore, women will alwals have a upper hand in the matter of reproduction. I do not feel that such conclusions could be sustained. 33. In paragraph no. In the matters of conceiving and procreating a child, men and women are not similarll situated and therefore, women will alwals have a upper hand in the matter of reproduction. I do not feel that such conclusions could be sustained. 33. In paragraph no. 15 of the impugned judgment, the learned Judge observes that the issue of reproductive rights is an emotionalll debatable and gender intricate issue. It can generate various legal and social complications and consequences. In the case in hand, the couple is not infertile. There is no need to have sperm donor or surrogate mother. The wife being legalll wedded wife of the respondent cannot be faulted with for her eugenic choice of conceiving another child. The consent of the husband for ART is most essential and preliminarl formalitl required to proceed for ART procedure. 34. The learned Judge then observes in paragraph no. 16 of the impugned judgment that the oldest legal maxim which is developed under the law of Torts would be applicable to the husband and wife viz. Ubi jus, ibi remedium . It is further recorded that the wife, to facilitate and fortifl her wish of another child, is so earnest that she declared that she would not claim anl maintenance from the husband for the upbringing of the child. 35. I fnd that the trial Court has completell lost sight of the fact that the growth of a child is not monel centric but is famill centric. The growth of a child, both mental and phlsical, to make a child an able, capable and competent human being with normal predisposition and bereft of mood swings, could onll occur in a congenial famill structure. 36. In order to be fair to the parties, I called upon the learned Advocate for the husband to state whether he would agree for a second child on the basis of the undertaking given bl the wife that she does not want funds for upbringing of the second child. He submits that the respondent-wife is economicalll well placed. She is the owner of 30 tenaments in Nanded and is also a partner in a hotel. Monel is not the issue. He submits that the respondent-wife is economicalll well placed. She is the owner of 30 tenaments in Nanded and is also a partner in a hotel. Monel is not the issue. The issue is that the respondent does not desire to have anl relation with his wife considering his traumatic experience and he, therefore, is not willing to have a second child from respondent-wife in anl circumstances, bl adopting anl procedure. 37. Both the sides have relied upon several judgments. In none of them, do I fnd anl direction bl anl Court, at the request of the estranged partner that the other partner should forcibll forebear a child. The decisions are based on cases in which either the couple is unable to come to terms to decide the number of children or the spacing between the children on the insistence of the famill set up. I called upon the learned Advocates for the respective sides to point out a single judgment cited before the Court which would suggest or lal down the law that in a marriage or even in a case of marital discord wherein the partners are estranged, the Court has accepted the wish either of the wife or the husband to compel the partner to forcibll forebear a child. 38. In the light of the above, I fnd that the application Exhibit 35 was fled prematurell. The possibilitl that the couple mal come together is a matter of speculation and neither the couple nor the Court can be prophetic. This aspect will have to be left for time to decide since, time heals all wounds. If in future, the couple reconcile and come together as husband and wife, even Nature will not stand in their wal to have a second child. But, seeking directions to forcibll have a second child during the pendencl of a petition seeking restitution of conjugal rights, would be detrimental to the mental growth of the child. 39. I fnd from the operative part of the impugned order that, as a step towards ordering that a second child be borne bl the couple, the learned Famill Court has directed the couple to seek appointment of a ladl Glnecologist, who is an expert in IVF procedure, for clinical consultation about the ART procedure. 39. I fnd from the operative part of the impugned order that, as a step towards ordering that a second child be borne bl the couple, the learned Famill Court has directed the couple to seek appointment of a ladl Glnecologist, who is an expert in IVF procedure, for clinical consultation about the ART procedure. The learned Advocate for the husband submits that when he does not desire to take even a single step towards procreating a second child, he does not desire to visit the said Glnecologist for anl sort of consultation or counselling. 40. In ml view, as the law stands todal, there cannot be such a direction notwithstanding the submission of Mr. Salunke that the male sperms are not the exclusive propertl of a husband. 41. In view of the above, this petition is allowed. The impugned order dated 17.06.2019 is quashed and set aside and the application Exhibit 35 stands rejected. Rule is made absolute.