Whether the petition and the affidavit signed by the Advocate and not by the party is valid ?

Whether the petition and the affidavit  signed by the Advocate and not by the party is valid.   ?         

A.P. CIVIL RULES OF PRACTICE

CHAPTER-IV Affidavits

34. (New) Interpretation of words:- The word ‘affidavit’ in this chapter shall include any document required to be sworn and the words ‘swear’ and sworn’; shall include ‘affirm’ and affirmed’

35. (37) Form:- Every affidavit shall be drawn up in the first person and divided into paragraphs numbered consecutively and each paragraph as nearly as may b e, shall be confined to a district portion of the subject. Every affidavit shall be written or typed or printed and stitched book wise. The deponent shall sign at the foot of each page of the affidavit. Note:- For forms of Oath and affirmation refer the Scheduled to the Indian Oaths Act 1969.

36. (38) Description of deponent:- Every affidavit shall be affidavit shall subscribe his full name, the name of his father age, place of residence and his trade or occupation.

37. (New) Title of affidavits:- Every person making an affidavit shall subscribe his full name, the name of his father, his age, place of residence and his trade or occupation.

38. (34) Before whom may be shorn:- Affidavits intended for use in Judicial proceedings may be sworn before any court or Magistrate or a “ Member of Nyaya Panchayat constituted under the A.P. Gram Panchayats Act, 1964, or a Sub-registrar, Nazir, or Deputy Nazir or a member of the State Legislature or a *Member of Parliament, or a Municipal Councilor or a Member of Zilla Parishad or any Gazetted officer in the service of the State Government or the Union Government or a Notary as defined in the Notaries Act, 1952, or a retired Gazetted Officer receiving pension from Government or a commissioned Military officer or a Advocate other than the Advocate who has been engaged in such proceeding or any Superintendent in the Office of the Commissioner for the Andhra Pradesh Hindu Religious institutions and charitable Endowments.

39. (40) Statement of Officer before whom affidavit is sworn:- The officer before whom an affidavit is sworn or affirmed shall state the date on which, and the place where, the same is sworn or a affirmed and sign his name and description at the end as in Form No. 14 ; otherwise the same shall not be filed or read in any matter without the leave of the court.

40. (39) Interlineations, alteration, etc:- No affidavit having in the Jurat or body there of any interlineations, alteration or erasure shall, without the leave of the court, be read or filed or made use, of unless the interlineations or alteration (other than by erasure) is authenticated by the initials of the officer taking the affidavit, nor in the case of an erasure unless the words or figures, appearing at the time of taking the affidavit to be written on the erasure, are rewritten and initialed in the margin of the affidavit by the officer taking it.

1. Newly inserted An officer may refuse to take an affidavit where, in his opinion, the interlineations or alterations, or erasures are so numerous as to render in necessary that the affidavit should be rewritten.

41. (New) Deponent to be identified:- Every person making an affidavit for use in the court shall if not personally known to the person before whom the affidavit is made, be identified by some one known to him, and the person before whom the affidavit is made shall state at the foot of the affidavits, the name, address, and description of the person by whom the identification was made

42. (New) Identification of a Purdanashin woman deponent:- Where the deponent is purdanashin woman and has not appeared unveiled before whom the affidavit is made, she shall be identified by a person known to him and 9 such person shall the foot of the affidavit certify that the deponent was identified by him and shall sign his name giving his name and address.

43. (41) Blind or illiterate deponent:- When an affidavit is sworn or a affirmed by any persons who appears to the officer taking the affidavit to be illiterate, blind, or unacquainted with the language in which the affidavit is written the officer shall certify that the affidavit was read, translated or explained in his presence to the deponent, and that the deponent seemed to understand it and made his signature or mark in the presence of the officer, as in Form No. 15 otherwise the affidavit shall not be used in evidence: Provided that where the deponent, due to physical deformity or any other cause, is unable to sign or affix his mark on the affidavit, such affidavit may be received in evidence, if the officer before whom the affidavit is subscribed certifies, that the contents of the affidavit were read over and explained to the deponent and admitted by him to be correct.

44. (35) Filing:- Before any affidavit is used it shall be filed in court but the Judge may, with the consent of both parties, or in case of urgency, allow any affidavit to be presented to the court and read on the hearing of an application.

45. (36) Notice of filing:- The Party filing an affidavit intended to be read in support of an application shall give not less than two days notice thereof to the other parties, who shall be entitled to inspect and obtain copies of the same, and to file counter-affidavits and shall give notice thereof to the applicant, who may inspect and obtain copies of the same; and file affidavits in reply but except with the leave of the court no further affidavit shall be filed or read. If any party fails to give notice of filing an affidavit the court may grant an adjournment of the hearing and order the party in default to pay the costs thereof.

46. (42) Affidavits not to be filed without proper endorsement:- No affidavit shall be filed in the court unless properly endorse with the number and title of the suit or matter, the name of the deponent, the date on which it is sworn and by whom and on whose behalf it is filed.

47. (New) Description of the person or place:- When in an affidavit any person is referred to, the correct name and address of such person and further description as may be sufficient for the purpose of the identification of such person, shall be given in the affidavit. When any place is referred to in an affidavit, it shall be correctly described.

48. (44) Affidavit on information and belief:- Every affidavit containing statements made on the information or belief of the deponent shall state the source or ground of the information or belief.

49. (43) Affidavit stating matter of opinion:- Every Affidavit stating any matter of opinion shall show the qualification of the deponent to express such opinion, by reference to the length of experience, acquaintance with the person or matter as to which the opinion is expressed, or other means of knowledge of the deponent.

50. (New) Striking out scandalous matter:- The Court may suo motu, or on application order to be struck out from any affidavit any matter with which is scandalous and may order payment of costs of the application, if any filed for that purpose.

51. (45) Documents referred to in affidavit:- Document referred to by affidavit shall be referred to as exhibits and shall be marked in the same manner as exhibits admitted by the court and shall bear the certificate in Form No. 16 which shall be signed by the officer before whom the affidavit is taken.

52. (46) Cross examination on affidavit:- The Court may at any time direct that any person shall attend to the cross-examined on his affidavit.

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CHAPTER V A-Interlocutory Proceedings;

B-Original Petitions; C-Transfer of Cases A-INTERLOCUTORY PROCEEDINGS

53. (29) Form of Interlocutory Application:- Interlocutory applications shall be headed with the cause title of the plaint, original petition, or appeal, as in Form No. 13.

54. (30) Contents of :- Except where otherwise provided by these rules or by any law for the time being in force, an Interlocutory Application shall state the provision of law under which it is made and the order prayed for or relief sought in clear and precise terms. The application shall be signed by the applicant or his Advocate, who shall enter the date on which such signature is made every application in contravention of this rule, shall be returned for amendment or rejected.

55. (30) Contents of :- There shall be separate application in respect of each distinct relief prayed for. When several relief’s are combined in one application, the court may direct the applicant to confine the application only to one of such relief’s unless the relief’s are consequential and to file a separate application in respect of each of the others.

56. (31) May rejected if substantive order is not asked for:- Every application which does not pray for a substantive order but prays merely, that any other application may be dismissed, and every application which prays for an order which ought to be applied for on the day fixed for the hearing of any suit, appeal or matter, may be rejected with costs.

57. (New) Out of order petition:- Whenever it is intended to move the application as an urgent (out) of order) application, the copy of the application served on the Advocate or the party appearing ion person shall contain an urgent application on the day specified in the endorsement.

58. (32) Service of Notice:-

1. Unless the court otherwise orders, notice of an interlocutory application shall be given to the other parties to the suit or matter or their Advocate not less than three days before the day appointed for the hearing of the application.

2. Such notice shall be served on the Advocate whenever the party appears by such Advocate.

3. Notice of the application may be served on a party not appearing by Advocate by registered post “ACKNOWLEDGEMENT DUE, OR BY SPEED POST OR BY AN APPROVED COURIER SERVICE OR BY FAX MASSAGE OR BY ELECTRONIC MALE SERVICE OR BY SUCH MEANS” to the address given in the pleading acknowledgement per-paid and in the event of its non- service on the party by means of summons to be delivered to the party or in the event of the party being absent or refusing to receive the same, affixture at his address.

4. Unless the court, otherwise orders, notice of Interlocutory application need not be given to a party, who having been served with the notice in the main suit, appeal or other proceedings, has not entered appearance or to a party to whom notice in the appeal has been dispensed with under the provisions of Rule 14 of Order XLI of the Code

59. (New) Copies to opposite party:- Every interlocutory application shall be supported by an affidavit and true copies of the application, affidavit and the documents, if any which the applicant intends to use or on which he intends to rely, shall be furnished to the opposite party or his advocate, unless otherwise ordered, not less than three clear days before the hearing date.

60. (33) Proof of facts by affidavit:- Any fact required to be proved upon an interlocutory proceeding shall unless otherwise provided by these, rules, or ordered by the court, be provided by affidavit but the Judge may, in any case, direct evidence to be given orally, and thereupon the

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evidence shall be recorded, and exhibits marked, in the same manner as in a suit and lists of the witnesses and exhibits shall be prepared and annexed to the judgment.

Or.19 - Affidavits

Power to order any point to be proved by affidavit

Any Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable :

Provided that where it appears to the Court that either party bona fide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorizing the evidence of such witness to be given by affidavit.

2. Power to order attendance of deponent for cross-examination

(1) Upon any application evidence may be given by affidavit, but the Court may, at the instance of either party, order the attendance for cross-examination of the deponent.

(2) Such attendance shall be in Court, unless the deponent is exempted from personal appearance in Court or the Court otherwise directs.

3. Matters to which affidavits shall be confined

(1) Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted : Provided that the grounds thereof are stated.

(2) The costs of every affidavit which shall unnecessarily set forth matters of hearsay or argumentative matter, or copies of or extracts from documents, shall (unless the Court otherwise directs) be paid by the party filing the same.

List Judgments citing this section  Download as PDF 

 AIR 1985 Ori 108

3. ii) Whether the petition under Order 9, Rule 9 of the Code was presented according to law, and

5. The second point is technical in nature.The petition under Order 9, Rule 9 of the Code was not signed bv the petitioner, but by her son Debi Prasad, who appended a verification thereto stating that he was looking after the suit on behalf of his mother.

6. The petition under Order 9, Rule 9 was signed by the petitioner's Advocate Mr. B. Das. Mr. L. Rath, learned counsel appearing for the petitioner, contended that in the facts and circumstances of the case the petition signed by the petitioner's Advocate Mr. B. Das was presented in Court according to law. There being no technical defect as pointed out by the Courts below, the petition for restoration could not be thrown out on the ground of mere technicality. If there be any defect in presentation of the petition, it was a mere irregularity, but not totally illegal.

According to Order 4, Rule 1, a suit is instituted by presenting a plaint to the Court. Every plaint shall comply with the rules contained in Orders 6 and 7. According to Order 6, Rule 14, a plaint is required to be signed by the party and his pleader. There is no such equivalent provision in Order 9, Rule 9. In other words, a petition for restoration under Order 9, Rule 9 is not required to be signed by the petitioner. It is also not required to be verified by the party as a plaint is required to be verified under Order 6, Rule 15.

According to Order 3, Rule 4 of the Code, no pleader shall act for any person in any Court unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognised agent or by some other person duly authorised by or under a power-of-attorney to make such appointment. In this case as already referred to above the petitioner appointed Mr. B. Das, Advocate of Aska to act on her behalf in the suit and proceedings arising therefrom within the meaning of Order 3. Rule 4. In accordance with such authority, Mr. B. Das acted in the proceeding by signing and presenting the petition for restoration. He did so for the benefit of and in order to protect the interest of the petitioner. No objection could be taken to such a petition for presentation of which the petitioner had implied consent. The aforesaid view is supported by authorities. In a Full Bench decision reported in AIR 1968 Ker 213, Chengan Souri Nayakam v. A. N. Menon, it was held that an Advocate in India has inherent authority to enter into a compromise on behalf of his client and the compromise so entered into would be binding on him. The implied authority is an actual authority and not an appendage to his office or dignity added by the Court to the status of the Advocate. Therefore, even though the vakalatnama did not expressly authorise a counsel to compromise the suit or confess judgment, if the Court was satisfied that there was no express prohibition in doing so, it had to assume that counsel had implied authority to compromise an action or confess judgment. This was the view taken in an extreme case. An identical view appears to have been taken is two decisions of the Supreme Court reported in AIR 1975 SC 1632, Employers in relation to Monoharbahal Colliery Calcutta v. K. N. Mishra and AIR 1975 SC 2202, Smt. Jamilabai Abdul Kadar v. Shankarlal Gulabchand. If by virtue of a vakalatnama without having any special authority an Advocate could compromise a cause and admit the same in Court on behalf of the party he represents, I see no reason why an Advocate in whose favour a vakalatnama has been duly executed in accordance with rules prescribed by the High Court cannot act and present a petition under Order 9, Rule 9 of the Code duly signed by him on behalf of the party he represents.

7. In view of the above and in disagreement with the Courts below, I hold that Mr. B. Das. Advocate for the petitioner was authorised to act on her behalf in the suit and the proceedings arising therefrom. Therefore, the petition under Order 9, Rule 9 signed and presented by him cannot be said as being not in accordance with law.

“mental cruelty”= as admittedly both lived together till 2006 and the appellant gave birth to their second daughter in 2006. Third, most of the incidents of alleged cruelty pertained to the period prior to 2006 and some were alleged to have occurred after 2006. Those pertained to period after 2006 were founded on general allegations with no details pleaded such as when such incident occurred (year, month, date etc.), what was its background, who witnessed, what the appellant actually said etc.- In our view, the incidents which occurred prior to 2006 could not be relied on to prove the instances of cruelty because they were deemed to have been condoned by the acts of the parties. So far as the instances alleged after 2006 were concerned, they being isolated instances, did not constitute an act of cruelty. A petition seeking divorce on some isolated incidents alleged to have occurred 8-10 years prior to filing of the date of petition cannot furnish a subsisting cause of action to seek divorce after 10 years or so of occurrence of such incidents. The incidents alleged should be of recurring nature or continuing one and they should be in near proximity with the filing of the petition. Few isolated incidents of long past and that too found to have been condoned due to compromising behavior of the parties cannot constitute an act of cruelty within the meaning of Section 13 (1)(ia)of the Act.

           REPORTABLE
                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                     CIVIL APPEAL Nos.7114-7115 OF 2014


Suman Singh                        ….Appellant(s)

                                   VERSUS

Sanjay Singh                             …Respondent(s)


                               J U D G M E N T
Abhay Manohar Sapre, J.
1)    These appeals are filed by the  appellant  (wife)  against  the  final
judgment and order dated 23.05.2013 passed by the High  Court  of  Delhi  at
New Delhi in F.A.O. No.108 of 2013 and F.A.O. No.109 of 2013  by  which  the
High Court dismissed the appeals filed by the appellant  and  confirmed  the
judgment dated 14.12.2010 of the  Principal  Judge,  Family  Courts,  Rohini
which had granted decree for  dissolution  of  marriage  in  favour  of  the
respondent  (husband)  and,  in  consequence,  also   affirmed   the   order
dismissing the petition filed by the appellant  (wife)  for  restitution  of
conjugal rights.
2)    Facts, in  brief,  to  appreciate  the  controversy  involved  in  the
appeals need mention infra.
3)    The marriage between the appellant and the respondent  was  solemnized
on 26.02.1999 at Delhi as per the Hindu rites.   The  respondent-husband  is
working as "Caretaker" in  the  Government  of  NCT  of  Delhi  whereas  the
appellant is a housewife. Out of this wedlock,  one  daughter  was  born  on
15.06.2002 and the second daughter was born on  10.02.2006.  Both  daughters
are living with the appellant.
4)     On  11.07.2010,  the  respondent  (husband)  filed  a  petition   for
dissolution of marriage under Section 13 of the  Hindu  Marriage  Act,  1955
(hereinafter referred to as "The Act”) in the Family Courts,  Rohini,  Delhi
against the appellant (wife). The respondent sought decree  for  dissolution
of marriage essentially on the ground of "cruelty”.
5)    In substance, the respondent, in his  petition,  pleaded  9  instances
which, according  to  him,  constituted  "cruelty”  within  the  meaning  of
Section 13(1)(i-a)  of  the  Act  entitling  him  to  claim  dissolution  of
marriage against the appellant.
6)    The first ground of cruelty was related  to  wife's  behavior  on  the
next day of marriage, i.e., 27.02.1999. It was alleged  that  the  appellant
came out of the bedroom in night dress and that  too  late  when  the  close
relatives of the respondent were sitting in the house. It was  alleged  that
she did not pay respect and wishes to the elders. (Para 9 of the plaint)
7)    The second ground of cruelty was again about the appellant's  behavior
with the respondent on the eve of  New  Year.  However,  the  year  was  not
mentioned.  According to the respondent, he  agreed  to  celebrate  the  new
year with the appellant  on  her  parental  house  as  the  parents  of  the
appellant gave repeated calls. After reaching her parental  house,  most  of
the time the appellant was busy with her family members and left  him  alone
in the drawing room.  Even at the time of dinner, the family members of  the
appellant did not behave properly. (Para 10).
8)    The third ground of cruelty was that the appellant did  not  show  any
inclination or  enthusiasm  to  attend  any  important  family  function  or
festivals at the respondent’s house whenever held. However, no details  were
given about the date and the function held.  The allegations are general  in
nature (Para 11).
9)    The fourth ground of cruelty was again about the indecent behavior  of
the appellant towards the respondent’s family members. However,  no  details
were pleaded except making general averments (Para 12).
10)   The fifth ground of cruelty was in  relation  to  an  incident  which,
according to the respondent, occurred in July 1999. It was alleged that  the
appellant, on that day, insisted that  the  couple  should  live  separately
from the respondent's parents (Para 13).
11)   The sixth ground of cruelty was again general with no details. It  was
alleged that the appellant was not interested in doing  any  household  work
nor was interested in preparing meals and used to insist the  respondent  to
have his lunch from outside. (Para 14).
12)   The seventh ground of cruelty was in relation to one  incident  which,
according to the respondent, occurred on Diwali day in the  year  2000.   It
was again about the behavior of the appellant with  the  family  members  of
the respondent which, according to the respondent, was rude (Para 16).
13)   The eighth ground of cruelty was in relation to one isolated  incident
which, according to the respondent, occurred on  15.04.2001.  It  was  again
about the behavior of the appellant with the friends of the  respondent  who
had come to the respondent's house. According to the respondent, the  family
members did not like it (Para 17).
14)   The ninth ground of cruelty  was  that  one  day  in  year  2010,  the
appellant  visited  the  respondent's  office  and   misbehaved   with   the
respondent in the presence of other officials (Para 27).
15)   The respondent also alleged some  instances  in  the  petition.  They,
however, again essentially relate to  the  appellant’s  behaviour  with  the
respondent and his family members.
16)    The  appellant  filed  her  written  statement   and   denied   these
allegations. The appellant also applied for restitution of  conjugal  rights
against the respondent in the same  proceedings  by  filing  petition  under
Section 9 of the Act and inter alia alleged in her petition that it was  the
respondent who  has  withdrawn  from  her  company  without  there  being  a
reasonable cause. She also while denying the case set up by  the  respondent
justified her case for restitution of conjugal rights.
17)   The Trial Court framed the following issues on the basis of  pleadings
in the case:
Whether  after  solemnization  of            marriage,  the  Respondent  has
treated the Petitioner with cruelty? OPP
Whether the Petitioner is entitled to                        the  decree  of
divorce as prayed? OPP
   3. Relief

The following issues were framed based on  the  pleadings  in  the  petition
under Section 9 of the Act:

Whether the Petitioner is entitled to the restitution of conjugal rights  as
prayed? OPP
Relief

18)   Parties adduced the evidence. By order dated  14.12.2012,  the  Family
Court allowed the petition filed by the respondent. It  was  held  that  the
grounds alleged by the respondent amounted  to  mental  cruelty  within  the
meaning of Section 13(1)(ia) of the Act and the same having been  proved  by
the respondent, he was  entitled  to  claim  a  decree  for  dissolution  of
marriage against the appellant. Accordingly, the Trial Court granted  decree
for dissolution of marriage in favour of the respondent  and  dissolved  the
marriage. Since the decree for dissolution of marriage  was  passed  against
the appellant, the petition filed by the appellant  against  the  respondent
seeking restitution of conjugal rights was dismissed.
19)   The appellant, felt aggrieved by  the  aforesaid  order,  filed  first
appeals before the High Court. In appeals,  the  question  was  whether  the
Trial Court was justified in granting decree for dissolution of marriage  to
the respondent (husband) and, in consequence, was  justified  in  dismissing
the petition for restitution of  conjugal  rights  filed  by  the  appellant
(wife).
20)   By impugned  judgment,  the  High  Court  dismissed  the  appeals  and
affirmed the judgment/decree of the Trial Court. The appellant (wife),  felt
aggrieved, has filed these appeals by special leave against the judgment  of
the High Court.
21)   Heard Mr. D.N. Goburdhan, learned counsel for the  appellant  and  Mr.
Gaurav Goel, learned counsel for the respondent.
22)   Having heard the learned counsel for the parties  and  on  perusal  of
the record of the case, we are inclined  to  allow  the  appeals  and  while
setting aside the impugned order, dismiss the divorce petition filed by  the
respondent(husband) against the appellant and,  in  consequence,  allow  the
petition filed by the appellant(wife) for  restitution  of  conjugal  rights
against the respondent (husband).
23)   The word "cruelty” used  in  Section  13(1)(ia)  of  the  Act  is  not
defined under the Act.  However, this expression was the subject  matter  of
interpretation in several cases of  this  Court.  What  amounts  to  “mental
cruelty” was succinctly explained by  this  Court  (three  Judge  Bench)  in
Samar Ghosh vs. Jaya Ghosh [(2007) 4  SCC  511].  Their  Lordships  speaking
through Justice Dalveer Bhandari observed that no uniform standard can  ever
be laid  down  for  guidance,  yet  it  is  appropriate  to  enumerate  some
instances of human behavior which may  be  considered  relevant  in  dealing
with the cases of “mental cruelty”.
24)   Their Lordships then broadly enumerated 16  category  of  cases  which
are considered relevant while examining  the  question  as  to  whether  the
facts alleged and proved constitute “mental cruelty” so as  to  attract  the
provisions of Section 13  (1)  (ia)  of  the  Act  for  granting  decree  of
divorce.
25)   Keeping in view the law laid down in Samar Ghosh’s case (supra),  when
we examine the grounds taken by the respondent in his petition  for  proving
the mental cruelty for grant of divorce against the appellant, we find  that
none of the grounds satisfies either individually or collectively  the  test
laid down in Samar Ghosh’s case (supra) so as to entitle the  respondent  to
claim a decree of divorce.
26)   This we hold for more than one reason. First, almost all  the  grounds
taken by the respondent in his petition were stale or/and isolated  and  did
not subsist to enable the respondent to seek a  decree  for  dissolution  of
marriage. In other words, the incidents of cruelty alleged had  taken  place
even, according to the respondent, immediately  after  marriage.  They  were
solitary incidents relating  to  the  behavior  of  the  appellant.  Second,
assuming that one or more grounds constituted an  act  of  cruelty,  yet  we
find that the acts complained of were condoned by the parties due  to  their
subsequent conduct inasmuch as admittedly both lived together till 2006  and
the appellant gave birth to their second daughter in 2006.  Third,  most  of
the incidents of alleged cruelty pertained to the period prior to  2006  and
some were alleged to have occurred after 2006.  Those  pertained  to  period
after 2006 were founded on general allegations with no details pleaded  such
as when such incident occurred  (year,  month,  date  etc.),  what  was  its
background, who witnessed, what the appellant actually said etc.
27)   In our view, the incidents which occurred prior to 2006 could  not  be
relied on to prove the instances of cruelty  because  they  were  deemed  to
have been condoned by the acts of the  parties.  So  far  as  the  instances
alleged after 2006 were concerned, they being isolated  instances,  did  not
constitute an act of cruelty.
28)   A petition seeking divorce on some isolated incidents alleged to  have
occurred 8-10 years prior to filing of the date of petition  cannot  furnish
a subsisting cause of action to  seek  divorce  after  10  years  or  so  of
occurrence of such incidents.  The incidents alleged should be of  recurring
nature or continuing one and they should  be  in  near  proximity  with  the
filing of the petition.
29)   Few isolated incidents of long past and that too found  to  have  been
condoned due to compromising behavior of the parties  cannot  constitute  an
act of cruelty within the meaning of Section 13 (1)(ia)of the Act.
30)   In our considered opinion, both the Courts below failed to  take  note
of this material aspect of the case and thus committed jurisdictional  error
in passing a decree for dissolution of marriage.
31)   We cannot, therefore, countenance  the  approach  of  the  High  Court
because it did not, in the first instance, examine the grounds taken in  the
petition to find out as to whether such grounds  constitute  mental  cruelty
or not?  The finding,  therefore,  though  concurrent  does  not  bind  this
Court.
32)   We are not impressed by the submission of the learned counsel for  the
respondent that an incident  which  occurred  somewhere  in  2010  when  the
appellant  visited  the  office  of  the  respondent  and  alleged  to  have
misbehaved with the respondent in front of other officers  would  constitute
an act of cruelty on  the  part  of  the  appellant  so  as  to  enable  the
respondent to claim divorce.  In the first place, no decree for  divorce  on
one isolated incident  can  be  passed.  Secondly,  there  could  be  myriad
reasons for causing such isolated incident. Merely  because  both  exchanged
some verbal conversation in presence  of  others  would  not  be  enough  to
constitute an act  of  cruelty  unless  it  is  further  supported  by  some
incidents of alike nature. It was not so.
33)   We are also not impressed by the submission  of  the  learned  counsel
for the respondent that since the appellant had made allegation against  the
respondent of his having extra-marital relation and  hence  such  allegation
would also constitute an act  of  cruelty  on  the  part  of  the  appellant
entitling the respondent to claim decree for dissolution of marriage.
34)   Similarly, we are also not impressed  by  the  submission  of  learned
counsel for the respondent that since both have been living  separately  for
quite some time and hence this may be  considered  a  good  ground  to  give
divorce.
35)   In  the  first  place,  the  respondent  did  not  seek  a  decree  of
dissolution of marriage on these grounds. Second,  the  grounds  of  cruelty
taken by the respondent in his petition  does  not  include  these  grounds.
Third, even if  some  stray  allegations  were  made  by  the  wife  in  her
pleading/evidence as were relied upon by  the  learned  counsel  are  of  no
relevance because, as mentioned above, these ground were not pleaded in  the
petition by the respondent for seeking a decree of divorce and nor were  put
in issue; and lastly, the burden being on the respondent, the same could  be
discharged by the respondent by pleading and then proving.  It  was  not  so
done. It is for these reasons,  we  cannot  accept  the  aforementioned  two
submissions for affirming the decree of divorce.
36)   This takes us to the next question as to  whether  the  appellant  was
able to make out any case for restitution of  conjugal  rights  against  the
respondent.
37)   Having perused her petition and evidence, we are of the view that  the
appellant is entitled for  a  decree  for  restitution  of  conjugal  rights
against the respondent.
38)   In our considered view, as it  appears  to  us  from  perusal  of  the
evidence that it  is  the  respondent  who  withdrew  from  the  appellant's
company without there being any reasonable cause to do so. Now that we  have
held on facts that the respondent failed to make out  any  case  of  cruelty
against the appellant, it is clear to us that  it  was  the  respondent  who
withdrew from the company of the appellant without reasonable cause and  not
the vice versa.
39)   In view of foregoing discussion, the appeals succeed and are  allowed.
The impugned judgment is set aside. As a result, the petition filed  by  the
respondent (husband) under Section 13(1) of the Act seeking  dissolution  of
marriage is dismissed. As a consequence thereof, the  marriage  between  the
parties is held to subsist whereas  the  petition  filed  by  the  appellant
against the respondent under Section 9 of the  Act  seeking  restitution  of
conjugal right is allowed. A decree for restitution of  conjugal  right  is,
accordingly, passed against the respondent.
40)   We hope and trust that the parties would now realize their duties  and
obligations  against  each  other  as  also  would   realize   their   joint
obligations as mother and father towards  their  grown  up  daughters.  Both
should, therefore, give quite burial to their  past  deeds/acts  and  bitter
experiences and start living together and see that their daughters are  well
settled in their respective lives.  Such reunion, we feel, would be  in  the
interest of all family members  in  the  long  run  and  will  bring  peace,
harmony and  happiness.  We  find  that  the  respondent  is  working  as  a
"Caretaker" in the Government Department (see Para 4 of  his  petition).  He
must, therefore, be the "Caretaker" of his own family that being  his  first
obligation and at the same time attend to his Government duties to  maintain
his family.


………...................................J.
                                  [R.K. AGRAWAL]


….……..................................J.
                                [ABHAY MANOHAR SAPRE]
      New Delhi;
March 08, 2017
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