JUDGMENT
A.N. Ray, J.
1. This is an appeal by the wife against the judgment and decree of the lower Court passed on 9th October, 1996, giving a decree of restitution of conjugal rights to the husband.
2. The parties were married in 1989. A daughter was born to them. In the matrimonial home the wife used to live with her husband and her in-laws. The last time the parties resided together was in 1991. Thereafter, the wife had left with her daughter to live in her father’s house. Some two years before the passing of the impugned Judgment a Judgment and decree was passed in a matrimonial matter between the same parties on the 4th of July, 1994.
3. That matter was a divorce petition presented by the husband, inter alia, on grounds of desertion and cruelty. These two grounds formed issues 3 and 4 before the lower Court. On both these issues a favourable ruling was entered in favour of the wife.
4. It has been argued before us on behalf of the appellant that in view of the earlier finding in favour of the wife on the husband’s divorce petitioner a different and completely opposite finding on the very same set of facts could not be entered in favour of the husband in a later proceeding between the same parties. It was further argued on behalf of the appellant that the husband having failed to obtain divorce on his petition, chose the circuitous method of obtaining a decree for restitution of conjugal rights and then filing a petition for dissolution of marriage after the lapse of one year, taking the risk that the wife would not come back to the matrimonial home. In fact such a suit for dissolution of marriage, under Section (1A) of Section 13 of the Hindu Marriage Act, 1955 has already been presented by the husband.
5. On behalf of the respondent the contention was that in the two suits of the husband, the evidence was quite different. On the basis of the differing evidence it was permissible for the Court to enter different findings on the facts found by the Courts on the basis of the respective evidence before those Courts, it was next argued that even if the ground of desertion fails, a later petition on the same facts for restitution of conjugal rights might succeed because of a different burden of proof applying in the two different proceedings. Section 9 of the said Act deals with restoration of conjugal rights and it is set out below along with the explanation:
“9. When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the District Court, for restitution of conjugal rights and the Court, on being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.
Explanation.–Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of providing reasonable excuse shall be on the person who has withdrawn from the society.”
Section 13(1)(ib), which deals with divorce on desertion runs as follows:
“13(1) Any marriage solemnised, whether before or after the commencement of the Act, may, on a petition presented by either the husband or the wife, be dissolved by decree of divorce on the ground that the other party–”
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“(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition.”
Also set out below is Section (1A) and Sub-section (ii) of Section 13:
“(1A) Either party to a marriage, whether solemnised before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground-”
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(iii) that there has been no restitution of conjugal rights as between the parties to the marriage of a period of one year or upwards after the passing of a decree of restitution of conjugal rights in a proceeding to which they were parties.”
6. In the facts of this case, nothing new has happened from 1991. It is in evidence that the husband went to the wife’s, pishi on 4.8.94 with his father to bring her back and once again on 1.8.96 apparently on his own. The petition for restitution of conjugal rights had been filed before the second visit, in fact much before the second visit, on 21.12.94.
7. There are no letters on record whereby the husband sought to appease his wife or bring her back.
8. In case of desertion, as also in case a spouse wants restitution of conjugal rights, the proof has compulsorily got to proceed to this extent, that the offending spouse left without reasonable excuse. Once this much
is proved and the offending spouse persists in staying away, the consequential matrimonial reliefs can been granted. For obtaining divorce rightaway, desertion for two years is needed. For obtaining divorce on failure of getting restitution of conjugal rights even after a decree, a spouse has to wait for one year. Thus the restitution decree and the second petition for divorce might be a slightly more expeditious way for getting relief.
9. However, the substance in both these matters is the same. Once it was decided finally in the husband’s divorce petition that the desertion by the wife could not lead to grant of the matrimonial relief of divorce, that pronouncement became final between the parties. There was no appeal and the pronouncement became formal for ever.
10. Once the pronouncement became final, it is little matter whether the burden of proof of withdrawal with reasonable excuse lies upon the wife, in a restitution proceeding instituted by the husband. Proof of the earlier decree and judgment, which was made in this case, was bound to set the matter at rest. It was no longer open for the Second Court to obtain a different version for the same set of basic events from the witnesses and then to come to a conclusion that the desertion by the wife was unreasonable on her part
11. In this view of the matter it is not possible to sustain the decree under appeal.
12. It was submitted on behalf of the husband that if this be the result then the husband is saddled for life with a wife whom he cannot ever divorce. Indeed if the initial going away from the matrimonial home was permissible and right, as here, then and in that event, she can neither be divorced for going away nor can there be a decree forcing her to come back, when she went away properly in the first place. If on top of that, the wife also chooses not to (sic) petition for divorce, as is the case here, the husband’s remedy must lie in same future event or facts and circumstances, which are quite separate from the initial departure of the wife from the matrimonial home and the facts already adjudicated upon in that regard. What those future facts and circumstances might be, are neither possible for us to predict, nor should we try to venture even one step in that regard. As such the appeal succeeds. The decree under appeal is set aside. The husband’s restitution petition is dismissed. There will be no order as to costs.
Xerox certified copy of this Judgment, if applied for, be supplied as expeditiously as possible.
S.N. Bhattacharjee. J.
I agree.