JU[CASE NUMBER]GMENT [ENTITY], J.
1. This appeal has been filed by the husband under [SECTION] of the [ACT] (hereinafter referred to as the Act) against the judgment and decree passed by the Additional [CASE NUMBER]istrict Judge, Kangra at [CASE NUMBER]haramsala in [CASE NUMBER][CASE NUMBER][CASE NUMBER][CASE NUMBER]III[CASE NUMBER]93, decided on 21.6.1996 dismissing the petition of the husband.
2. The husband filed a petition under [SECTION] of the Act for restitution of conjugal rights or in the alternative for grant of a decree of divorce under [SECTION] of the Act.
3. The facts, as alleged, were that the marriage between the parties was solemnized according to Hindu rights at Talwara on 7.8.1988. It was alleged that about 7 months after the marriage, the respondent left her matrimonial home. After the intervention of some respectable persons she again joined company of the petitioner in May, 1989, but again left his company after one week. According to the petitioner he also sought the help of Family Counselling Centre, but with no fruitful result. Thereafter at the instance of some other persons including the brother of the wife, she again joined company of the petitioner, but finally deserted the husband and left for Talwara on 19.2.1993.
4. The husband alleges that thereafter from 20.2.1993 till 28.2.1993 he made efforts to bring back the wife but to no avail. He lastly went to the house of his in-laws along with other respectable persons on 23.3.1993. It is alleged that on the said date the wife's brother and sister beat the petitioner and she refused to accompany him. The petitioner alleges that he was always ready and willing to keep the respondent with him.
5. The prayer clause of the petitioner reads as follows :
The petitioner, therefore, prays that a decree for restitution of conjugal rights may be passed or in the alternative the marriage of the parties may be dissolved by a decree of divorce.
6. The wife contested the petition. According to the wife it was the husband who was at fault and it was he who had wilfully neglected her and the children. She stated that she had filed a criminal complaint against the petitioner at Nurpur because he used to harass her mentally and physically also manhandled and tortured her. It was only after he gave an assurance that he would keep her and her children well, that she agreed to join his company. However, the petitioner did not keep up his promise and reverted to his old habits. According to the wife on 23.3.1993 it was the petitioner in fact who had given her beating at her parental house and had insulted her and also refused to take her back.
7. On the pleading of the parties, the Trial Court framed the following issues :
(i) Whether the petitioner is entitled for restitution of conjugal rights? OPP
(ii) Whether the respondent has, after solemnization of the marriage, treated the petitioner with cruelty and is entitled for a decree of divorce in the alternative on that ground ? OPP
(iii) Whether the petitioner has, after the solemnization of the marriage, treated the respondent with cruelty? If so, its effect? OPR
(iv) Whether the petitioner has deserted the respondent for a continuous period of not less than two years immediately preceding the presentation of the petition? If so, its effect? OPR
(v) Relief.
8. After recording evidence and hearing the parties the Trial Court has dismissed the petition. The Trial Court held that the petitioner has failed to prove that he was subjected to cruelty by the respondent and was, therefore, not entitled for a decree of divorce. The Trial Court in fact held that it was the petitioner who had treated the respondent with cruelty. Aggrieved against the said judgment and decree the present appeal has been filed by the husband.
9. Mr. [ENTITY], learned Counsel for the appellant, has argued that the findings of the Court below are totally against the evidence and in fact if the evidence is scrutinized carefully, it is quite clear that it is the wife who has treated the husband with cruelty and he is entitled to a decree of divorce. On the other hand, Mr. [ENTITY], learned Counsel appearing for the respondent, has supported the judgment delivered by the Trial Court. He has also raised a submission that a joint petition under [SECTION] and [SECTION] of the Act is not maintainable since these will be two mutually destructive prayers and cannot be termed as alternative prayers.
10. The first question to be decided is whether a spouse can file a petition under [SECTION] of the Act claiming restitution of conjugal rights and in the same petition also claim the alternative relief of divorce? Can a spouse in the same breath claim that the other spouse should be directed to join his[CASE NUMBER]her company or in the alternative a decree for divorce be granted?
11. To my mind, the two prayers for restitution of conjugal rights and for a decree of divorce are two diametrically opposite prayers, and, therefore, cannot be made together. These prayers are mutually destructive of each other. The purpose of restitution of conjugal rights is that the Court should intervene in a matter and because one party may have deserted the other, direct it to join the company of the spouse. It is obvious that such an order is to be passed so that the matrimonial home is saved and the married couple can live together. It is no doubt true that in case after decree for restitution of conjugal rights is passed and is not complied with by the spouse for a period of one year or more after the passing of decree it gives a right to the other spouse to claim divorce. However, in the same petition, it does not appear reasonable that both the prayers for restitution of conjugal rights and decree for divorce can be made.
12. To be fair to Mr. [ENTITY], he has brought to the notice of this Court a judgment of the Madhya Pradesh High Court reported in [PRECE[CASE NUMBER]ENT] . In this case the same question was considered and the Court held as follows :
I do no (sic) find any legal prohibition under the provisions of the Act for filing a petition by a spouse for restitution or in the alternative, for a decree of divorce on the ground of desertion.
[SECTION]. I am in respectful disagreement with the observations of the Madhya Pradesh High Court. The ground for obtaining decree for restitution of conjugal rights is that once the spouse has without reasonable cause withdrawn from the society of the other and on this being proved the aggrieved spouse can be granted a decree for restitution of conjugal rights. The grounds for divorce are many and also include desertion for a continuous period of not less than two years immediately preceding the presentation of the petition. Whereas in the case of restitution of conjugal rights no period of desertion is required to be proved, in the case where decree for divorce is claimed, it has to be proved that the other spouse has deserted the aggrieved spouse for a period of not less than two years. In the present case admittedly the alleged desertion look place on 19.2.1993. The petition was filed on 31.3.1993. Therefore, no petition for divorce on the ground of desertion could have been entertained on the ground of desertion since the desertion was admittedly less than two years.
14. Mr. [ENTITY] then contends that the husband's petition for divorce is based on the acts of cruelty, especially those which have taken place on 23.3.1993 when the husband was allegedly beaten up. In the petition filed before the Trial Court there are no allegations of cruelty levelled against the wife. The relevant allegations read as under :
That lastly on 23.3.1993, the petitioner went along with some respectables of the area including Ward Member of Kharota Panchayat, [ENTITY], Ex. Pardhan of Talwara and brother-in-law of the petitioner were also associated to finally bring the respondent back, but instead of coming back to Kharar, the respondents brother and sister beat the petitioner and the respondent refused to accompany the petitioner. For the above happening a report has been lodged at Police Station, Talwara after getting M.L.C. from B.B.M.B. Hospital, Talwara. The respondent even threatened in hospital at Talwara that she will throw both children in some well and will kill herself also.
The petitioner was and is ready to keep the respondent with him, however she has left his company without any excuse. To the knowledge of the petitioner, the respondent is serving in a private school and is also doing tuition work and earning about Rs. 2,000 per month.
15. A bare reading of these allegations makes it clear that even the word cruelty has not been used. No allegations have been made against the wife. All that has been stated is that the brother and sister of the wife beat up the husband. He thereafter lodged a report at Police Station, Talwara. It is not even alleged that this beating was at the instance of the wife. The only allegation against the wife is that she threatened to throw both the children in some well and to commit suicide. In my view the allegations, as made in the petition, do not constitute any such allegation of cruelty which could entitle the husband to a decree of divorce from the wife. However, assuming that these allegations amount to an act of cruelty, the question which arises is whether the petitioner had condoned these acts from cruelly or not?
16. [SECTION] of the Act provides that a decree for divorce on the ground of cruelty can only be granted if the Court is satisfied that the petitioner has not in any manner condoned the alleged acts of cruelty. The petitioner in all such petitions is required to make a specific averment that he has not condoned the acts of cruelty. The petitioner has made such an averment in Para 10. However, the question to be considered is, what is the effect of filing the petition for restitution of conjugal rights,
17. A [CASE NUMBER]ivision Bench of this Court in [PRECE[CASE NUMBER]ENT] , has considered this question in detail. In that case the husband filed the petition for dissolution of marriage by a decree of divorce on the ground of cruelty and desertion. The wife contested the petition. She raised a specific plea that the husband had earlier filed a petition under [SECTION] seeking a decree for restitution of conjugal rights. He had withdrawn the said petition and then filed a petition for divorce. According to her the filing of the petition for restitution of conjugal rights amounted to condonation of the alleged acts of cruelty on her part and, therefore, the petition was liable to be dismissed. The [CASE NUMBER]ivision Bench following the judgment of the Apex Court in [PRECE[CASE NUMBER]ENT] , held that it was a mandatory duty cast upon the Court to consider whether the petitioner spouse has conodoned the acts of cruelty or not. The Court hereafter considered the meaning of the word condonation and the impact of filing a petition for restitution of conjugal rights. The Court held thus :
[SECTION] Condonation has not been defined anywhere. 'Condonation' is a word of technical import, which means and implies wiping of all rights of injured spouse to take matrimonial proceedings. In a sense condonation is reconciliation, namely, the intention to remit the wrong and restore the offending spouse to the original status which in every case deserves to be gathered from the attending circumstances. The forgiveness in order to constitute condonation need not be express. It may be implied by the husband of the wife's conduct and vice versa. Ordinarily, as a general rule, condonation of matrimonial offence deprivs the condoning spouse of the right of seeking relief on the offending conduct. When a petition is filed claiming a decree for restitution of conjugal rights, it clearly stipulates that the person seeking relief has no grouse or cause of complaint against the other spouse and even if there was any cause or complaint, the same has either been condoned or forgiven. The intention being to resume normal cohabitation. As held in [PRECE[CASE NUMBER]ENT]'s case (supra), matrimonial offence is erased by condonation. In view of clear provisions contained in Clause (b) of Sub-section (1) of Section 23 of the Act, it is always for the person who has approached the Court to satisfy that the act of cruelty has not been condoned.
xxx xxx xxx The conduct, in this case, of the husband in having moved the petition thereafter under [SECTION] of the Act would amount to his intention to forgive the offending spouse in having made the statement before the Panchayat which alone was the ground made out which according to the husband was cruelty on the part of the wife. Admittedly, the allegation was made once and was not repeated thereafter. [CASE NUMBER]ue to the parties having lived together even for a short duration of 7[CASE NUMBER]8 days on couple of occasions, as admitted by the husband, after the wife made the allegation amounts to the restoring of the offending spouse to the original status. By this act and conduct on the part of husband it can reasonably be inferred that the act stood condoned and as such husband was not entitled to the relief claimed.
18. The Saw laid down in this judgment is applicable with even greater force to the present case. Here the husband has filed a joint petition. The petition for condonation of restitution of conjugal rights obviously implies the condonation of all earlier acts of cruelty. Therefore, there could not be an alternative prayer for divorce made in the same petition itself. Another interesting aspect is that though the petition for restitution of conjugal rights was filed on 31.3.1993, the petitioner in his statement recorded in Court on 24.2.1994 has stated that despite the earlier alleged instances of cruelty, including the instance of 23.3.1993, he was still willing to keep the respondent at his home, but thereafter the respondent had created such a situation that now he wants a decree for divorce. Therefore, it is clear that even in his statement he has admitted that he had condoned the alleged acts of cruelty and was willing to keep his wife with him. According to him, thereafter i.e., after 23.3.1993 the wife had created such a situation that it led to his mental tension and, therefore, he could not keep her in his house. What are these additional facts have neither been pleaded nor proved. Therefore, in my opinion the petitioner could not have filed a joint petition and even if such a petition was maintainable the petitioner having himself condoned the acts of cruelty, if any, is not entitled to any decree for divorce on the ground of cruelty.
19. I have not gone into the merits of the case since in my opinion the petition itself was not maintainable and further the petitioner in his own statement has admitted that despite the alleged acts of cruelty he was willing to keep his wife at his home which is a clear admission that he had condoned the said alleged acts of cruelty.
20. In view of the above discussion the appeal is without any merit and the same is dismissed with no order as to costs.