Input:
Civil Appeal No. 187 of 1983.
From the Judgment and Order dated the 17th August, 1982 of the Punjab and Haryana High Court in First Appeal From Order No. 199 M of 1979.
306 R. K. Garg, Mrs. Meera Aggarwal and R. C. Misra for the appellant.
E.C. Agarwala, Mrs. H. Wahi and Rajiv Sharma for the respondent.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
The parties herein were married at Jullundur City according to Hindu Vedic rites on or about 24th January, 1975.
The first daughter of the marriage Menka was born on 4th January, 1976.
On 28th February, 1977 second daughter Guddi was born.
It is alleged that 16th May, 1977 was the last day of cohabitation by the parties.
It is further alleged that on 16th May, 1977, the respondent husband turned the appellant out of his house and withdrew himself from her society.
The second daughter unfortunately expired in the house of the respondent/father on 6th August, 1977.
On 17th October, 1977, the wife appellant filed a suit against the husband/respondent herein under Section 9 of the hereinafter referred to as the said Act for restitution of conjugal rights.
In view of the argument now sought to be advanced, it is necessary to refer to the said petition.
In the said petition, the wife had set out the history of the marriage as hereinbefore briefly mentioned and alleged several maltreatments both by the husband as well as by her in laws and thereafter claimed decree for restitution of conjugal rights.
On 21st March, 1978, the learned Sub Judge Ist Class passed an order granting Rs. 185 per month as maintenance pendente lite and Rs. 300 as the litigation expenses.
On 28th March, 1978, a consent decree was passed by the learned Sub Judge Ist Class for restitution of conjugal rights.
It may be mentioned that on the petition of the wife for restitution of conjugal rights, the husband respondent appeared and filed his written statement admitting therein the factum of marriage between the parties but denied the fact that the respondent had ever made any demand from the petitioner as alleged or had ever disliked her or had withdrawn from her society or turned her out from his house as alleged by the wife petitioner in her petition for restitution of conjugal rights.
The respondent thereafter made a statement in the court that the application of the petitioner under Section 9 of the said Act be granted and decree thereof be passed.
Accordingly the learned Sub Judge Ist Class on 28th March 1978 passed the decree for the restitution 307 of conjugal rights between the parties.
It was alleged by the petitioner wife that the appellant had gone to the house of the respondent and lived with him for two days as husband and wife.
This fact has been disbelieved by all the courts.
The courts have come to the conclusion and that conclusion is not challenged before us that there has been no cohabitation after the passing of the decree for restitution of conjugal rights.
On 19th April, 1979, the respondent/husband filed a petition under Section 13 of the said Act against the appellant for divorce on the ground that one year had passed from the date of the decree for restitution of confugal rights, but no actual cohabitation had taken place between the parties.
The appellant filed her reply to the said petition.
The categorical case in reply of the appellant was that it was incorrect that after passing of the decree, there had been no restitution of conjugal rights between the parties, positive case of the appellant was that after passing of the decree, the wife was taken to the house of the husband by the parents of the wife after one month of the decree and that the husband kept the wife in his house for two days and she was again turned out.
It was further alleged that the wife had filed an application under Section 28A of the said Act in the court of Sub Judge, 1st Class, Jullundur on 22nd January, 1979 with the request that the husband should be directed to comply with the decree passed against him under Section 9 of the said Act and the application was pending at the time when the reply was filed by the wife to the petition for divorce.
The learned District Judge on 15th October, 1979 dismissed the petition of the husband for divorce.
The learned Judge framed two issues, one was whether there has been no restitution of conjugal rights after the passing of the decree for the restitution of conjugal rights, and secondly to what relief was the husband entitled to ? After considering the evidence of civil and criminal proceedings pending between the parties, the learned Judge came to the conclusion that there has been no resumption of cohabitation between the parties after 28th March, 1978 and decided the issue in favour of the husband but on the question of relief the learned Judge was of the view that in view of the provisions of Section 23 of the said Act and in view of the fact that the previous decree was a consent decree and at that time there was no provision like provision of Section 13B of the said Act i.e. 'divorce by mutual consent ', the learned Judge was of the view that as the decree for restitution 308 of conjugal rights was passed by the consent of the parties, the husband was not entitled to a decree for divorce.
Being aggrieved by the said decision, there was an appeal before the High Court of Punjab and Haryana.
So far as last mentioned ground was concerned, the High Court held that in view of the decision of this Court in the case of Dharmendra Kumar vs Usha Kumari, this contention was not open to the wife.
The court was of the opinion that in view of the said decision of this Court, it could not be said that the husband was taking advantage of his 'wrongs '.
In the said decision this Court noted that it would not be reasonable to hold that the relief which was available to the spouse against whom a decree for restitution of conjugal rights had been passed should be denied to the one who does not comply with the decree passed against him or her.
The expression "in order to be a 'wrong ' within the meaning of Section 23 (1) (a) the conduct alleged has to be something more than mere disinclination to agree to an offer of reunion, it must be misconduct serious enough to justify denial of the relief to which the husband or the wife is otherwise entitled to.
So, therefore, Section 23 (1) (a) provides as follows: "23.
(1) In any proceeding under this Act, whether defended or not, if the Court is satisfied that (a) any of the grounds for granting relief exists and the petitioner except in cases where the relief is sought by him on the ground specified in sub clause (a), sub clause (b) or sub clause (c) of clause (ii) of section 5 is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief and").
In that view of the matter, the High Court rejected the contention.
So far as the other aspect was concerned, the learned Judge expressed the view that the decree for restitution of conjugal rights could not be passed with the consent of the parties and therefore being a collusive one disentitled the husband to a decree for divorce.
This view was taken by the learned trial judge relying on a previous decision of the High Court.
Mr. Justice Goyal of the High Court felt that this view required reconsideration and he therefore referred the matter to the Chief Justice for constitution of a Division Bench of the High Court for the consideration of this question.
309 The matter thereafter came up before a Division Bench of Punjab and Haryana High Court and Chief Justice Sandhawalia for the said court on consideration of different authorities came to the conclusion that a consent decree could not be termed to be a collusive decree so as to disentitle the petitioner to decree for restitution of conjugal rights.
It may be mentioned that before the Division Bench of behalf of the appellant wife, counsel did not assail the factual finding of the Trial Court that there was no co habitation after the decree for restitution of conjugal rights nor did he press the first ground of defence namely that the appellant could not take advantage of his 'wrong ' because of having refused cohabitation in execution of the decree.
However, the ground that the decree for restitution of conjugal rights was in a sense collusive decree was pressed before the Division Bench.
In view of the Full Bench decision of the Punjab and Haryana High Court in the case of Joginder Singh vs Smt.
Pushpa wherein the majority of the Judges of the Full Bench held that a consent decree in all cases could not be said to be a collusive decree and where the parties had agreed to passing of a decree after attempts had been made to settle the matter, in view of the language of Section 23 of the court had tried to make conciliation between the parties and conciliation had been ordered, the husband was not disentitled to get a decree.
Section 23 sub section (2) provides as follows: "(2) Before proceeding to grant any relief under this Act, it shall be the duty of the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavor to bring about a reconciliation between the parties: Provided that nothing contained in this sub section shall apply to any proceeding wherein relief is sought on any of the grounds specified in clause (ii), clause (iii), clause (iv), clause (v), clause (vi) or clause (vii) of sub section (1) of section 13.
" In this case from the facts on record it appears that there was no collusion between the parties.
The wife petitioned against the husband on certain allegations, the husband denied these allegations.
He stated that he was willing to take the wife back.
A decree on that basis was passed.
It is difficult to find any collusion as such in 310 the instant case.
Apart from that we are in agreement with the majority of the learned judges of the Division Bench of Punjab and Haryana High Court in the case of Joginder Singh vs Smt.
Pushpa (supra) that all cases of consent decrees cannot be said to be collusive.
Consent decrees per se in matrimonial matters are not collusive.
As would be evident from legislative intent of Section 13B that divorce by mutual consent is no longer foreign to Indian law of divorce but of course this is a subsequent amendment and was not applicable at the time when the decree in question was passed.
In the premises we accept the majority view of the Division Bench of Punjab and Haryana High Court on this point.
In this appeal before this Court, counsel for the wife did not challenge the finding of the Division Bench that the consent decree as such was not bad or collusive.
What he tried to urge before us was that in view of the expression 'wrong ' in Section 23(1) (a) of the Act, the husband was disentitled in this case to get a decree for divorce.
It was sought to be urged that from the very beginning the husband wanted that decree for divorce should be passed.
He therefore did not deliberately oppose the decree for restitution of conjugal rights.
It was submitted on the other hand that the respondent/husband had with the intention of ultimately having divorce allowed the wife a decree for the restitution of conjugal rights knowing fully well that this decree he would not honour and thereby he misled the wife and the Court and thereafter refused to cohabitate with the wife and now, it was submitted, cannot be allowed to take advantage of his 'wrong '.
There is, however, no whisper of these allegations in the pleading.
As usual, on this being pointed out, the counsel prayed that he should be given an opportunity of amending his pleadings and, the parties, with usual plea, should not suffer for the mistake of the lawyers.
In this case, however, there are insurmountable difficulties.
Firstly there was no pleading, secondly this ground was not urged before any of the courts below which is a question of fact, thirdly the facts pleaded and the allegations made by the wife in the trial court and before the Division Bench were contrary to the facts now sought to be urged in support to her appeal.
The definite case of the wife was that after the decree for restitution of conjugal rights, the husband and wife cohabitated for two days.
The ground now sought to be urged is that the husband wanted the wife to have a decree for judicial separation by some kind of a trap and then not to cohabitate with her and thereafter obtain this decree for divorce.
This would be opposed to the facts alleged in the defence by the wife.
Therefore 311 quite apart from the fact that there was no pleading which is a serious and fatal mistake, there is no scope of giving any opportunity of amending the pleadings at this stage permitting the wife to make an inconsistent case.
Counsel for the appellant sought to urge that the expression 'taking advantage of his or her own wrongs ' in clause (a) of sub section 23 must be construed in such a manner as would not make the Indian wives suffer at the hands of cunning and dishonest husbands.
Firstly even if there is any scope for accepting this broad argument, it has no factual application to this case and secondly if that is so then it requires a legislation to that effect.
We are therefore unable to accept the contention of counsel for the appellant that the conduct of the husband sought to be urged against him could possibly come within the expression 'his own wrongs ' in section 23(1) (a) of the Act so as to disentitle him to a decree for divorce to which he is otherwise entitled to as held by the courts below.
Further more we reach this conclusion without any mental compunction because it is evident that for whatever be the reasons this marriage has broken down and the parties can no longer live together as husband and wife, if such is the situation it is better to close the chapter.
Our attention, however, was drawn to a decision of a learned single judge of the Andhra Pradesh High Court in the case of T. Sareetha vs Venkata Subbaiah.
In the said decision the learned judge had observed that the remedy of restitution of conjugal rights provided for by Section 9 of the said Act was a savage and barbarous remedy violating the right to privacy and human dignity guaranteed by Article 21 of the Constitution.
Hence, according to the learned judge, Section 9 was constitutionally void.
Any statutory provision that abridged the rights guaranteed by Part III of the Constitution would have to be declared void in terms of Article 13 of the Constitution.
According to the said learned judge, Article 21 guaranteed right to life and personal liberty against the State action.
Formulated in simple negative terms, its range of operation positively forbidding the State from depriving any person of his life or personal liberty except according to the procedure established by law was of far reaching dimensions and of overwhelming constitutional significance.
Learned judge observed that a decree for restitution of conjugal rights constituted the grossest form of violation of any individual right to privacy.
According to the learned judge, it denied the woman her free choice whether, when and how her body was to 312 become the vehicle for the procreation of another human being.
A decree for restitution of conjugal rights deprived, according to the learned judge, a woman of control over her choice as and when and by whom the various parts of her body should be allowed to be sensed.
The woman loses her control over her most intimate decisions.
The learned judge therefore was of the view that the right to privacy guaranteed by Article 21 was flagrantly violated by a decree for restitution of conjugal rights.
The learned judge was of the view that a wife who was keeping away from her husband because of permanent or even temporary estrangement cannot be forced, without violating her right to privacy to bear a child by her husband.
During a time when she was probably contemplating an action for divorce, the use and enforcement of Section 9 of the said Act against the estranged wife could irretrievably alter her position by bringing about forcible conception permanently ruining her mind, body and life and everything connected with it.
The learned judge was therefore clearly of the view that Section 9 of the said Act violated Article 21 of the Constitution.
He referred to the Scarman Commission 's report in England recommending its abolition.
The learned judge was also of the view that Section 9 of the said Act, promoted no legitimate public purpose based on any conception of the general good.
It did not therefore subserve any social good.
Section 9 of the said Act was, therefore, held to be arbitrary and void as offending Article 14 of the Constitution.
Learned judge further observed that though Section 9 of the said Act did not in form offend the classification test, inasmuch as it made no discrimination between a husband and wife, on the other hand, by making the remedy of restitution of conjugal rights equally available both to wife and husband, it apparently satisfied the equality test.
But bare equality of treatment regardless of the inequality of realities was neither justice nor homage to the constitutional principles.
He relied on the decision of this Court in the case of Murthy Match Works, Etc.
vs The Assistant Collector of Central Excise Etc.
The learned judge, however, was of the opinion based on how this remedy was found used almost exclusively by the husband and was rarely resorted to by the wife.
The learned judge noticed and that is a very significant point that decree for restitution of conjugal rights can only be enforced under Order 21 Rule 32 of Code of Civil Procedure.
He also referred to certain trend in the American law and came to the 313 conclusion that Section 9 of the said Act was null and void.
The above view of the learned single judge of Andhra Pradesh was dissented from in a decision of the learned single judge of the Delhi High Court in the case of Smt.
Harvinder Kaur vs Harmander Singh Choudhry.
In the said decision, the learned judge of the Delhi High Court expressed the view that Section 9 of the said Act was not violative of Articles 14 and 21 of the Constitution.
The learned judge noted that the object of restitution decree was to bring about cohabitation between the estranged parties so that they could live together in the matrimonial home in amity.
The leading idea of Section 9 was to preserve the marriage.
From the definition of cohabitation and consortium, it appeared to the learned judge that sexual intercourse was one of the elements that went to make up the marriage, but that was not the summum bonum.
The courts do not and can not enforce sexual intercourse.
Sexual relations constituted an important element in the conception of marriage, but it was also true that these did not constitute its whole content nor could the remaining aspects of matrimonial consortium be said to be wholly unsubstantial or of trivial character.
The remedy of restitution aimed at cohabitation and consortium and not merely at sexual intercourse.
The learned judge expressed the view that the restitution decree did not enforce sexual intercourse.
It was a fallacy to hold that the restitution of conjugal rights constituted "the starkest form of governmental invasion" of "marital privacy".
This point namely validity of Section 9 of the said Act was not canvassed in the instant case in the courts below counsel for the appellant, however, sought to urge this point before us as a legal proposition.
We have allowed him to do so.
Having considered the views of the learned single judge of the Andhra Pradesh High Court and that of learned single judge of Delhi High Court, we prefer to accept on this aspect namely on the validity of Section 9 of the said Act the views of the learned single judge of the Delhi High Court.
It may be mentioned that conjugal rights may be viewed in its proper perspective by keeping in mind the dictionary meaning of the expression "Conjugal".
Shorter Oxford English Dictionary, 3rd Edn.
I page 371 notes the meaning of 'conjugal ' as "of or pertaining to marriage or to husband and wife in their relations to each other".
In the Dictionary of English Law, 1959 Edn.
at page 453, Earl Jowitt defines 'conjugal rights ' thus: 314 "The right which husband and wife have to each other 's society and marital intercourse.
The suit for restitution of conjugal rights is a matrimonial suit, cognizable in the Divorce Court, which is brought whenever either the husband or the wife lives separate from the other without any sufficient reason, in which case the court will decree restitution of conjugal rights (Matrimonial Causes Act, 1950, section 15), but will not enforce it by attachment, substituting however for attachment, if the wife be the petitioner, an order for periodical payments by the husband to the wife (s.22).
Conjugal rights cannot be enforced by the act of either party, and a husband cannot seize and detain his wife by force (R.V. Jackson In India it may be borne in mind that conjugal rights i.e. right of the husband or the wife to the society of the other spouse is not merely creature of the statute.
Such a right is inherent in the very institution of marriage itself.
See in this connection Mulla 's Hindu Law 15th Edn.
p. 567 Para 443.
There are sufficient safeguards in Section 9 to prevent it from being a tyranny.
The importance of the concept of conjugal rights can be viewed in the light of Law Commission 71st Report on the "Irretrievable Breakdown of Marriage as a Ground of Divorce, Para 6.5 where it is stated thus: "Moreover, the essence of marriage is a sharing of common life, a sharing of all the happiness that life has to offer and all the misery that has to be faced in life, an experience of the joy that comes from enjoying, in common, things of the matter and of the spirit and from showering love and affection on one 's offspring.
Living together is a symbol of such sharing in all its aspects.
Living apart is a symbol indicating the negation of such sharing.
It is indicative of a disruption of the essence of marriage "breakdown" and if it continues for a fairly long period, it would indicate destruction of the essence of marriage "irretrievable breakdown".
Section 9 only is a codification of pre existing law.
Rule 32 of Order 21 of the Code of Civil Procedure deals with decree for specific performance for restitution of conjugal rights or for an 315 injuction.
Sub rule (1) of Rule 32 is in these terms: "Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights or for an injunction, has been passed, has had an opportunity of obeying the decree and has willfully failed to obey it, the decree may be enforced in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract, or for an injuction by his detention in the civil prison, or by the attachment of his property, or by both.
" It is significant to note that unlike a decree of specific performance of contract, for restitution of conjugal rights the sanction is provided by court where the disobedience to such a decree is willful i.e. is deliberate, in spite of the opportunities and there are no other impediments, might be enforced by attachment of property.
So the only sanction is by attachment of property against disobedience of a decree for restitution of conjugal rights where the disobedience follows as a result of a willful conduct i.e. where conditions are there for a wife or a husband to obey the decree for restitution of conjugal rights but disobeys the same in spite of such conditions, then only financial sanction, provided he or she has properties to be attached, is provided for.
This is so as an inducement by the court in appropriate case when the court has decreed restitution for conjugal rights and that the court can only decree if there is no just reason for not passing decree for restitution of conjugal rights to offer inducement for the husband or wife to live together in order to give them an opportunity to settle up the matter amicably.
It serves a social purpose as an aid to the prevention of break up of marriage.
It cannot be viewed in the manner the learned single judge of Andhra Pradesh High Court has viewed it and we are therefore unable to accept the position that Section 9 of the said Act is violative of Article 14 or Article 21 of the Constitution if the purpose of the decree for restitution of conjugal rights in the said Act is understood in its proper perspective and if the method of its execution in cases of disobedience is kept in view.
Another decision to which our attention was drawn is also a Bench decision of the Andhra Pradesh High Court in the case of Geeta Laxmi vs G.V.R.K.
Sarveswara Rao.
There on the admitted 316 misconduct of the husband is not only in not complying with the decree for restitution of conjugal rights but ill treating the wife and finally driving her away from the house, it was held that the husband was not entitled to a decree under Section 13(1A) of the said Act in view of the wrong as contemplated under Section 23(1) (a) of the Act.
The facts of that case were entirely different from the facts of the instant case before us.
There is no such allegation or proof of any ill treatment by the husband or any evidence of the husband driving the wife out of the house.
In that view of the matter, this decision cannot be of any assistance to the appellant in the instant case.
Counsel for the appellant, however, contended before us that in the social reality of the Indian society, a divorced wife would be materially at a great disadvantage.
He is right in this submission.
In view, however, of the position in law, we would direct that even after the final decree of divorce, the husband would continue to pay maintenance to the wife until she remarries and would maintain the one living daughter of the marriage.
Separate maintenance should be paid for the wife and the living daughter.
Until altered by appropriate order on application on proper materials such maintenance should be Rs. 200 per month for the wife appellant and Rs. 300 per month for the daughter Menka.
Wife would be entitled to such maintenance only until she re marries and the daughter Menka to her maintenance until she is married.
Parties will be at liberty to ask for variation of the amounts by proper application on proper materials made before Sub judge Ist Class Jullunder.
The respondent would pay costs of this appeal to appellant assessed at Rs. 1500.
The appeal is dismissed with the aforesaid directions.
N.V.K. Appeal dismissed.

Output:
The wife appellant filed a suit against the husband respondent under Section 9 of the , for restitution of conjugal rights.
Though the respondent contested the petition contending that he had neither turned the appellant out from his house nor withdrawn from her society later as he made a statement in the Court that the application under Section 9 be granted; a consent decree was passed by the Sub Judge for the restitution of conjugal rights between the parties.
After a lapse of a year, the respondent husband filed a petition under Section 13 of the Act against the appellant for divorce on the ground that though one year had lapsed from the date of passing the decree for restitution of conjugal rights no actual co habitation had taken place between the parties.
The appellant filed her reply contending that she was taken to the house of the husband by her parents one month after the decree and that the husband kept her in the house for two days and then she was again turned out.
It was further alleged that an application under Section 28A filed in the Subordinate Court was pending.
304 The District Judge after considering the evidence of the civil and criminal proceedings pending between the parties, came to the conclusion that there had been no resumption of cohabitation between the parties and that in view of the provisions of Section 23 and in view of the fact that the previous decree was a consent decree and that at the time of the passing of the said decree, as there was no provision like Section 13B i.e. divorce by mutual consent '; held that as the decree for restitution of conjugal rights was passed by the consent of the parties, the husband was not entitled to a decree for divorce.
The respondent filed an appeal.
A Single Judge of the High Court following the decision of this Court in Dharmendra Kumar vs Usha Kumari ; , held that it could not be said that the husband was taking advantage of his 'wrongs ', but however expressed the view that the decree for restitution of conjugal rights could not be passed with the consent of the parties, and therefore being a collusive one disentitled the husband to a decree for divorce, and referred the matter to the Chief Justice for constitution of a Division Bench for consideration of the question.
The Division Bench held following Joginder Singh vs Smt.
Pushpa, AIR 1969 Punjab and Haryana page 397 that a consent decree could not be termed to be a collusive, decree so as to disentitle the petitioner to a decree for restitution of conjugal rights, and that in view of the language of Section 23 if the Court had tried to make conciliation between the parties and conciliation had been ordered, the husband was not disentitled to get a decree.
The appeal was allowed, and the husband granted a decree of divorce.
In the appeal to this Court it was contended on behalf of the wife appellant that : (a) in view of the expression 'wrong ' in section 23(1) (a) of the Act, the husband was disentitled to get a decree for divorce, and (b) Section 9 of the Act was arbitrary and void as offending Article 14 of the Constitution.
Dismissing the Appeal, ^ HELD: (1) In India conjugal rights i.e. right of the husband or the wife to the society of the other spouse is not merely creature of the statute.
Such a right is inherent in the very institution of marriage itself.
There are sufficient safeguards in Section 9 of the to prevent it from being a tyranny.
[314 D E] 305 2.
Section 9 is only a codification of pre existing law.
Rule 32 of Order 21 of the Code of Civil Procedure deals with decree for specific performance for restitution of conjugal rights or for an injunction.
[314 H] 3.
Section 9 of the Act is not violative of Article 14 or Article 21 of the Constitution if the purpose of the decree for restitution of conjugal rights in the said Act is understood in its proper perspective and if the method of execution in cases of disobedience is kept in view.
[315 G] T. Sareetha vs Venkata Subbaiah, A.I.R. 1983 Andhra Pradesh page 356, over ruled.
Harvinder kaur vs Harmander Singh Choudhry, A.I.R. 1984 Delhi, page 66, approved.
It is significant that unlike a decree of specific performance of contract; a decree for restitution of conjugal rights, where the disobedience to such a decree is willful i.e. is deliberate, might be enforced by attachment of property.
Where the disobedience follows as a result of a willful conduct i.e. where conditions are there for a wife or a husband to obey the decree for restitution of conjugal rights but disobeys the same in spite of such conditions, then only the properties have to be attached, is provided for.
This is so to enable the Court in appropriate cases when the Court has decreed restitution for conjugal rights to offer inducement for the husband or wife to live together and to settle up the matter amicably.
It serves a social purpose, as an aid to the prevention of break up of marriage.[315 C F] 5.
(i) Even after the final decree of divorce the husband would continue to pay maintenance to the wife until she remarries and would maintain the one living daughter of the marriage.
Separate maintenance should be paid for the wife and the living daughter.
Wife would be entitled to such maintenance only until she remarries and the daughter to her maintenance until she is married.
[316 C; E] (ii) Until altered by appropriate order on application or proper materials, such maintenance should be Rs. 200 per month for the wife, and Rs. 300 per month for the daughter.
[316 D]


Input:
N: Criminal Appeal No. 129 of 1971 .
Appeal by Special Leave from the Judgment and order dated the 4th March, 1971 of the Bombay High Court at Bombay in Criminal Appeal No. 1502 of 1969.
R B. Datar and Rajen Yash Paul, for the Appellant.
M. N Shroff, for the Respondent.
The Judgment of the Court was delivered by BHAGWATI, J.
The appellant and one Mohd. Yusuf Gulam Mohd. were charged for an offence under section 379 read with s 34 of the Indian Penal Code for snatching two sarees from one Govind whilst he was carrying them from the show of his master to that of a washer and dyer.
The learned Presidency Magistrate, who tried the case, accepted the prosecution evidence and found the appellant and Mohd. Yusuf Gulam Mohd. guilty of the offence under section 379 read with section 34 and 664 Sentenced each of their to suffer rigorous imprisonment for six months.
It does not appear from the judgment of the learned Presidency Magistrate that, though the appellant was only seventeen years and three months old at the date of the offence and the offence was not punishable with imprisonment for life, the attention of the learned presidency Magistrate was invited to the provisions of section 6 of the Probation of offenders Act, 1958.
The appellant preferred an appeal against the order of conviction and sentence to the High Court of p Bombay but the appeal was unsuccessful.
The High Court took the same view of the evidence as the learned Presidency Magistrate and confirmed the conviction of the appellant under section 379 read with section 34.
So far as the question of sentence was concerned, a submission was made on behalf of the appellant that since he was a young boy of about seventeen years and three months and this was his first offence, leniency should be shown tow him.
But the High Court r observed that age alone was not sufficient to invoke the mercy of the Court and the appellant had not done anything since the date of the offence to deserve the mercy of the Court and it did not, therefore, see any reason to interfere with the sentence of imprisonment passed against the appellant.
It appears that once again the provisions of section 6 of the Probation of offenders Act, 1958 were not specifically brought to the notice of the High Court and the sentence of imprisonment was maintained by the High Court without applying its mind to those provisions.
Hence the appellant preferred a petition for special leave to this Court and on that petition, this Court granted special leave limited to the question "whether the provisions of the Probation of offenders Act should have been applied in the case".
We are concerned in this appeal with section 6 of the Probation of offenders Act, 1958, for it is only under that section that the appellant claims the benefit of the provisions contained in the Act.
Subsection (1) of section 6, on a plain grammatical reading of its language, provides that when any person under twenty one years age is found guilty of having committed an offence punishable with imprisonment, but not with imprisonment for life, the Court, by which the person is found guilty, shall not impose any sentence of imprisonment, unless it is satisfied that, having regard to the circumstances of the case, including the nature of the offence and the character of the offender it would not be desirable to deal with him 665 him under section 3 or section 4.
This inhibition on the power of the Court to impose a sentence of imprisonment applies not only at the state of trial court but also at the stage "High court or any other Court when the case comes before it on appeal or in revision. '.
Vide section 11, sub section
(1) of the Act.
It is, therefore, obvious that even though the point relating to the applicability of section 6 was not raised before the learned Presidency Magistrate or the High Court, this Court is bound to take notice of the provisions of that section and give its benefit to the appellant, particularly since it is a section which is intended for the benefit of juvenile delinquents, reflecting the anxiety of the Legislature to protect them from contact or association with hardened criminals in jails and retrieve them from a life of crime and rehabilitate them as responsible and useful members of society.
Here, we find that whatever date be taken as the relevant date for determining the applicability of section 6 whether the date of the offence or the date of the judgment of the learned Presidency Magistrate or the date of the judgment of the High Court the appellant was below twenty one years age.
The offence of which he is found guilty is an offence under section 379 read with section 34 and it is clearly an offence punishable with imprisonment but not with imprisonment for life.
The conditions requisite for the applicability of section 6 are, therefore, plainly satisfied and under section 6, Sub section
(1) it is not competent to the Court to impose ant sentence of imprisonment on the appellant, unless the Court is satisfied that, having regard to the circumstances of the case, including the nature of the offence and the character of the appellant, it would not be desirable to deal with him under section 3 or section 4.
It is true that sub section
(2) of section 6 requires that for the purpose of satisfying itself whether it would not be desirable to deal with the appellant under section 3 or section 4, the Court is required to call for a report from the Probation officer and consider the report, if any, but we do not think it necessary in the present case to call for any report from the Probation officer nor to remand the case to the learned Presidency Magistrate for passing an appropriate order after calling for a report from the Probation officer and considering it.
We have on record the antecedent history giving the background of the appellant.
The appellant was at one time a well known child film actor and he actually won several awards for acting in films.
It appears that at some subsequent stage he fell in bad company and took to evil ways The offence which he is convicted is, no doubt, an offence as theft which cannot be lightly ignored, but it is comparatively of a minor characters in that only two sarees were snatched away from the hands of Govind, perhaps under the stress of economic necessity.
Moreover, this is a false offence of the appellant.
We are, therefore, not at all satisfied 12 L925SupCI/75 666 that it would not be desirable to deal with the appellant under section 3 or section 4 and consequently, the sentence of imprisonment passed on the appellant must be set aside.
We accordingly set aside the sentence of imprisonment passed on the appellant and direct that he be released on his entering into a bond wit one surety in the sum of Rs. 500/ to appear in the Court of the Presidency Magistrate to receive sentence, whenever called upon to do so within a period of six months and during that period to keep the peace and be of good behaviour.
The learned Presidency Magistrate is directed to take the necessary bond from the appellant and the necessary surety bond from a surety to his satisfaction.
The appellant will continue on bail till such time as these directions are carried out, after which the bail bond will stand canceled.
P.B.R. Appeal allowed.

Output:
On the question whether the provisions of the Probation of offenders Act 1958 should have been applied in this case, Allowing the appeal, ^ HELD: (1) Even though the point relating to the applicability of s.6 was not raised before the Presidency Magistrate or the High Court, this Court is bound to take notice of the provisions of that section and give its benefit to the appellant, particularly since it is a section which is intended for the benefit of juvenile delinquents reflecting the anxiety of the Legislature to protect them from contact or association with hardened criminals in jails and retrieve them from a life of crime and rehabilitate them is responsible and useful members of society.
[665 B C] (2) Section 6 lays down an injunction not to impose a sentence of imprisonment on a reason who is under 21 years of ' age and is found guilty of having committed an offence punishable with imprisonment other the that for if unless it is satisfied that it would not be desirable to deal with him under section 3 or section 4. 'This inhibition on the power of the court to impose a sentence of imprisonment applies not only at the state of trial but also at the stage of "High, Court or any other court when the case comes before it in appeal or revision" section 11 (i) [664 H] In the instant case the appellant was below 21 years of age.
The appellant was at one time a well known child film actor and won several awards for acting in films.
Subsequently he fell in bad company and took to evil ways.
The offence of theft of two Sarees, though it could not be lightly ignored.
was of minor.
character and this was the first offence of the appellant.
It Count be said that it would not be desirable to deal with the appellant under section 3 or section 4 of the Act.
[665 G H]


Input:
minal Appeal No. 207 of 1967.
Appeal by special leave from the judgment and order dated April 17, 1967 of the Andhra Pradesh High Court in Criminal Revision Petition No. 735 of 1965.
P. Ram Reddy and A. V.V. Nair, for the appellant.
G.S. Rama Rao, for the respondents.
The judgment of the Court was delivered by Shah, J.
K. Meerayya, K. Venkatanarayana respondents in this appeal and two others were charged before the Judicial Magistrate, IInd Class, Avanigadda, for offences under sections 323 and 324 I.P. Code for voluntarily causing injuries to Seetharamayya and Veeraraghavayya on June 22, 1964.
The Trial Magistrate convicted Meerayya and Venkatanarayana the first under the offence under section 324 and the second for the offence under section 323 I.P. Code.
In appeal to the Court of Session, 1006 Krishna Division, at Machilipatnam, the order was confirmed.
The High Court, in exercise of its revisional jurisdiction, set aside the order of conviction and sentence.
The State of Andhra Pradesh has appealed to this Court, with special leave.
The case raises a question of some importance in the administration of justice.
The findings recorded by the Trial Magistrate and confirmed by the Sessions Judge were that the respondents had committed assault upon Seetharamayya and Veeraraghavayya and that they could in law be properly convicted.
But it was urged that there was a bar against prosecution of the two accused Meerayya and Venkatanarayana because of the "principle of issue estoppel".
The plea is raised on the ground that the Station House Officer, Kodur Police Station, had instituted proceedings in the Court of the Sub Divisional Magistrate, Bandar, under section 107 ' Code of Criminal Procedure, against 96 persons, amongst whom were the two respondents, and an order under section 112 Code of Criminal Procedure was made stating that the persons named therein were indulging in acts of violence involving breach of public peace and tranquillity in the village of Salempalam and were endangering peace in the village, and that they had formed themselves into a party and were thereby disturbing the public peace and tranquillity by committing, acts of violence, and on that account they were required to show cause why each person named should not execute a bond for keeping the peace for a period of one year in the sum of Rs. 1,000 with two sureties in a like amount each.
In the order requiring the parties to show cause, four incidents were referred to the first of which is material.
It was recited that on June 22, 1964, 11 persons including the two respondents had beaten Seetharamayya and Veeraraghavayya with crow bars and sticks, and a case in Crime No. 20/64 under sections 148, 323 and 325 I.P.
Code had been registered and was being investigated.
The Sub Divisional Magistrate held an inquiry and was of the view that since the evidence led in support of the first incident was not supported by reliable evidence, and there were inherent discrepancies in the testimony of the witnesses and the recitals in the complaint, the first incident was not proved against any of the eleven persons.
It was urged that the order of the Sub Divisional Magistrate holding that the respondents were not concerned in the incident had become final and it was not open to the Judicial Magistrate, IInd Class, Avanigadda, to hold a trial against the respondents in respect of the same incident.
The Trial Magistrate rejected the plea, and the Sessions Judge agreed with him.
But in the view of the High Court since in the proceeding under section 107 of the ,Code of Criminal Procedure the incident which was made the subject matter of the complaint against the respondents in the Court of the Judicial Magistrate was one of the incidents 1007 relied upon and was held not proved, it was not open to the State to commence or continue a prosecution against the respondents in respect of the same incident.
In so holding, the High Court held that on the principle of "issue estoppel" approved by this Court in Manipur Administration vs Thokchom, Bira Singh(1) so long as the finding, that the respondents were not concerned in the incident, was not set aside by appropriate proceeding, no prosecution on any allegation legally inconsistent with that finding could be commenced against the respondents.
Counsel for the State contended that the rule of issue estoppel is inconsistent with the statutory provisions contained in section 403 of the Code of Criminal Procedure, and cannot be resorted to in criminal trials and that in any event the rule of issue estoppel had no application, since there was no "previous trial" of the respondents for any offence alleged to arise out of the incident in respect of which they were tried.
It was urged that it was not the law even recognised by the Australian Courts where the rule of issue estoppel had its origin that evidence on which a criminal proceeding was held cannot be utilised in any subsequent proceeding between the same parties.
The first contention raised by counsel for the State cannot be entertained in view of a large body of authority in this Court.
If the matter were res integra the argument that the Courts cannot travel outside the terms of the Code of Criminal Procedure : and extend the rule of autre fois acquit incorporated in section 403 of the Code of Criminal Procedure may have required serious consideration.
The following important rules emerge from the terms of section 403 of the Code,of Criminal Procedure: (1) An order of conviction or acquittal in respect of any offence constituted by any act against or in favour of a person does not prohibit a trial for any other offence constituted by the same act which he may have committed, if the Court trying the first offence was incompetent to try that other offence.
(2) If in the course of a transaction several offences are committed for which separate charges could have been made, but if a person is tried in respect of some of those charges, and not all, and is acquitted or convicted, he may be tried for any distinct offence for which at the former trial a separate charge may have been, but was not, made.
(3) If a person is convicted of any offence constituted by any act, and that act together with the consequences which re suited therefrom constitute a different offence, he may again be tried for that different offence arising out of the consequences, if (1) ; L 6 Sup C1169 13 1008 the consequences had not happened or were not known to the Court to have happened, at me time when he was convicted.
(4) A person who has once been tried by a court of competent jurisdiction for an offence and has been either convicted or acquitted shall not be tried for the same offence or for any other offence arising out of the same facts, for which a different charge from the one made against him might have been made or for which he might have been convicted under the Code of Criminal Procedure.
Section 403 of the Code of Criminal Procedure enacts the rule of autre fois acquit and autre fois convict applicable to criminal trials.
The rule is that so long as an order of acquittal or conviction at a trial held by a Court of competent jurisdiction of a person charged with committing an offence stands, that person cannot again be tried on the same facts for the offence for which he was tried or for any other offence arising there/fore.
But the rule of issue estoppel in criminal trials evolved by the High Court of Australia and approved by the Judicial Committee has been applied to criminal trials in India, apart from the terms of section 403 of the Code of Criminal Procedure.
Lord MacDermott in Sambasivam vs Public Prosecutor, Federation of Malaya(1) observed at p. 479: "The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence.
To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication.
The maxim "Res judicata pro veritate accipitur" is no less applicable to criminal than to civil proceedings.
Here, the appellant having been acquitted at the first trial on the charge of having ammunition in his possession, the prosecution was bound to accept the correctness of that verdict and was precluded from taking any step to challenge it at the second trial.
And the appellant was no less entitled to rely on his acquittal in so far as it might be relevant in his defence.
That it was not conclusive of his innocence on the fire arm charge is plain, but it undoubtedly reduced in some degree the weight of the case against him, for at the first trial the facts proved in support of one charge were clearly relevant to the other having regard to the circumstances in which the ammunition and revolver were found and the fact that they fitted each other." 1009 In Sambasivam 's case(1) the appellant was tried for the offence of being in possession of ammunition in violation of Reg.
4(1)(b) of the Emergency (Criminal Trials) Regulations, 1948.
He was acquitted of the charge.
Later he was tried for the offence of carrying a fire arm contrary to Reg.
4(1)(a) of the Emergency Regulations and was convicted by the Supreme Court of the Federation of Malaya.
An appeal was carried to the Judicial Committee and the legality of the conviction was challenged on the grounds, inter alia, that so long as the order of acquittal in respect of the carrying of ammunition stood, the facts proved in support of that charge were in the circumstances of the case clearly relevant to the second charge, and the appellant was entitled to rely upon the acquittal in so far as it was relevant to his defence.
The plea so raised was accepted by the Judicial Committee.
Pritam Singh vs The State of Punjab(a) this Court held that where a person has been tried under section 19(f) of the Arms Act and is acquitted because the prosecution has failed to establish the possession of a revolver by the accused as alleged, in a subsequent trial of the offence of murder, where the possession of the revolver was a fact in issue which had to be established, the prosecution could not ignore the finding at the previous trial.
In several later judgments of this Court the principle of issue estoppel has received approval: Manipur Administration vs Thokchom, Bira Singh(a).
Banwari Godara vs The State.
of Rajasthan(4).
Lalta & Ors.
vs The State of U.P.(5) It was also accepted in The Assistant Collector of Customs and another vs L.R. Malwani and another(x).
It is too late now to make a departure from the rule accepted by this Court.
In the American Courts also the rule of issue estoppel has received approval: Sealfron vs United States(7).
It is true that in Connelly vs Director of Public Prosecutions(8) decided by the House of Lords there was some difference of opinion amongst the Law Lords as to the applicability of the rule to criminal trials in the English Courts.
Our Criminal jurisprudence is largely rounded upon the basic rules of English Law though the procedure is somewhat different.
Trials by jury have been practically abolished and the cases are being tried by Judges.
Several charges arising out of the same transaction can be tried under the Code of Criminal Procedure together at one trial, and specific issues are always raised and determined (1) (2) L A.I.R. 1956 S.C. 415.
(3) ; (4) Cr. A. No. 141 of 1960 decided on Feb. 7, 1961.
(5) Cr. A. No. 185 of 1966 decided on Oct. 25, 1968.
(6) Cr.
15 & 35 of 1967 decided on Oct. 16, 1968.
(7) [1948] 332 U.S. Rep. 575.
(8) L.R. 1010 by the Courts.
Under the English system of administration criminal jaw, trials for serious offences are held with the aid of the jury and it is frequently impossible to determine with certitude the specific issues on which the verdict of the jury is founded.
In criminal trials under the Code of Criminal procedure, there is no uncertainty in the determination of issues decided.
Difficulties envisaged in Connelly 's case(1) in the application of the rule of issue estoppel do not therefore arise under our system.
But it is necessary to notice the true basis of the rule.
Dixon 1., in The King vs Wilkes(2) observed at pp.
518 519: " . it appears to me that there is nothing wrong in the view that there is an issue estoppel, if it appears by record of itself or as explained by proper evidence., that the same point was determined in favour of a prisoner in a previous criminal trial which is brought issue on a second criminal trial of the same prisoner.
There must be a prior proceeding determined against the Crown necessarily involving an issue which again arises in a subsequent proceeding by the Crown against the same prisoner.
The allegation of the Crown in the subsequent proceeding must itself be inconsistent with the acquittal of the prisoner in the previous proceeding.
But if such a condition affairs arises I see no reason why the ordinary rules of issue estoppel should not apply.
Such rules are not to be confused with those of res judicata, which in criminal proceedings are expressed in the pleas of autre fois acquit and autre fois convict.
They are pleas which are concerned with the judicial determination of an alleged criminal liability and in the case of conviction with the substitution of a new liability.
Issue estoppel is concerned with the judicial establishment of a proposition of law or fact between parties.
It depends upon well known doctrines which control the relitigation of issues which are settled by prior litigation .
" The rule, does not predicate that evidence given at one trial against the accused cannot again be given in the trial of the accused for a distinct offence.
As Lord Morris of Borty Y Gest observed in Connelly 's case(1) at p. 1325: " . there is no rule or principle to the effect that evidence which has first been used in support of a charge which is not proved may not be used to, support a subsequent and different charge, (1) (2) 77 C.L.R. 511.
1011 Can it be said in the present case that there has been a trial of the accused on an issue in a prior litigation, and an attempt is made to relitigate the same? It may be recalled that the respondents were not tried at any criminal trial in the previous case.
The earlier proceeding was for binding over the respondents and 94 others to keep the peace on the case that it was apprehended that they were likely to commit breach of peace or disturb public tranquillity.
The primary issue which the Court was called upon to determine was whether there was any apprehension of the breach of peace or disturbance of public tranquillity which necessitated the passing of the order requiring the respondents and others to give security.
It is true that in support of that order the Station House Officer in his report had relied upon four incidents, one of which specifically set out the details which formed the subject matter of ' the trial from which the present appeal arises.
But there was no trial of the respondents for an offence in the earlier proceeding and there was no order of conviction or acquittal.
The rule of issue estoppel cannot, in our judgment, be extended so as to prevent evidence which was given in the previous proceeding and which was held not sufficient to sustain the other for being used in support of a charge of an offence which the State seeks to make out.
The rule of issue estoppel prevents relitigation of the issue which has been determined in a criminal trial between the State and the accused.
If in respect of an offence arising out of a transaction a trial has been taken place and the accused has been acquitted, another trial in respect of the offence alleged to arise out of that transaction or of a related transaction which requires the Court to arrive at a conclusion inconsistent with the conclusion reached at the earlier trial is prohibited by the rule of issue estoppel.
In the present case, there was no trial and no acquittal.
The rejection of evidence given in the earlier proceeding to sustain an order for binding over the respondents to keep the peace does not preclude the trial of the respondents in respect of the specific incident which together with the other incident was sought to be made the basis of the order of binding over the respondents.
This Court in L.R. Malwani 's case(1) declined to apply the rule of issue estoppel to a case arising under the Sea Customs Act in which there was an inquiry held by the Collector of Customs and a criminal prosecution was then filed.
In our judgment, the High Court was in error in holding that the respondents could not be tried and convicted of offences under section 324 and 323 I.P. Code because in the earlier proceeding under section 107 of the Code of Criminal Procedure, evidence with regard to the incident out of which offences which are the subject matter of the present appeal was taken, and was regarded as insufficient to sustain the order.
(1) C:r, As.
15 & 35 of 1967 decided on Oct. 16, 1968, 1012 The appeal is allowed, and the order passed by the High Court is set aside.
As, however, the sentences passed by the learned Trial Magistrate and confirmed by the Court of Session were of short duration and the respondents have been released on bail, we do not think that they should be called upon to undergo the remaining sentences.
We reduce the sentences of imprisonment to the period already undergone.
The appeal is allowed and the order of the Session Court is restored, subject to the modification in the sentence of imprisonment.
R.K.P.S. Appeal allowed.

Output:
Proceedings were instituted under section 107 Cr.
P.C. against four persons including the two respondents and an order was made against them under section 112 Cr.
P.C. stating that they were indulging in various acts of violence involving breach of peace and requiring them to show cause why each of them should not execute a bond for keeping the peace.
This order referred to four incidents, the first of which was that on June 22, 1964, eleven persons including the two respondents had indulged i.n certain acts of violence as a result of which a case under sections 148, 323 and 325 I.P.C. had been registered.
After holding an inquiry, the Magistrate was of the view that the evidence led in support of the first incident was not reliable and the first incident was not proved against any of the eleven persons.
Subsequently the respondents were convicted at a trial of offences under sections 323 and 324 I.P.C. committed in the first incident in the order under section 112 Cr.
The Court of Session in appeal confirmed the conviction but the High Court, in revision, set it aside holding that on the principle of "issue estoppel" approved by this Court in Manipur Administration vs Thockchom Bira Singh, ; , since in the proceedings under section 107 Cr.
P.C. the incident which was made the subject matter of the complaint against the respondents in the Trial Court was one of the incidents relied upon and was held not proved, it was not open to the State to prosecute the respondents in respect of the same incident.
In appeal to this Court with special leave, it was contended that the rule of "issue estoppel" had no application in the present.
case, since there was no "previous trial" of the respondents for any offence alleged to arise out of the incident in respect of which they were tried; and furthermore, that the rule of issue estoppel was inconsistent with the statutory provisions contained in section 403 Cr.
P.C. and could not be resorted to in criminal trials.
HELD: (i) The High Court was in error in holding that the respondents could not be tried and convicted of offences under sections 324 and 323 I.P.C. because in the earlier proceeding under section 107 Cr. P.C., evidence with regard to the incident out of which the offences arose which were the subject matter of the present appeal was taken, and was regarded as insufficient to sustain the order.
The rejection of evidence given in the earlier proceeding to sustain an order for binding over the respondents to keep the peace did not preclude the trial of the respondents in respect 1005 of the specific incident which together with the other incidents was sought to be made the basis of the order of binding over the respondents.
The rule of "issue estoppel" prevents relitigation of the issue which has been determined in a criminal trial between the State and the accused.
If in respect of an offence arising out a transaction a trial has taken place and the accused has been acquitted, another trial in respect of the offence alleged to arise out of that transaction or of a related transaction which requires the Court to arrive at a conclusion inconsistent with the conclusion reached at the earlier trial is prohibited by the rule of issue estoppel.
In the present case there was no trial of the respondents for an offence in the earlier proceeding and there was no order of conviction or acquittal.
[1011 D F, H] (ii) Section 403 Cr.
P.C. enacts the 'rule of autre fois acquit and autre fois convict applicable to criminal trials.
The rule is that so long as an order of acquittal or conviction at a trial held by a court of competent jurisdiction of a person charged with committing an offence stands, that person cannot again be tried on the same facts for the offence for which he was tried or for any other offence arising therefrom.
But the rule of "issue estoppel" in criminal trials evolved by the High Court of Australia and approved by the Judicial Committee has been applied to criminal trials in India, apart from the terms of section 403.
[1008 C] Manipur Administration vs Thokchom, Bira Singh, ; ; Sambasivam vs Public Prosecutor, Federation of Malaya, ; Pritam Singh vs The State of Punjab, A.I.R. 1956 S.C. 415; Banwari Godara vs The State of RaJasthan, Cr. A. No. 141 of 1960 decided on Feb. 7, 1961; Lalta & Ors.
vs The State of U.P., Cr. A. No. 185 of 1966 decided on Oct. 25, 1968; The assistant Collector of Customs and another vs
L.R. Malwani and another, Cr. ,As.
15 & 35 of 1967 decided on Oct. 16, 1968; Sealfron vs United States, (1948) 332 U.S. Rep. 575 and The King vs Wilkes; , , referred to.
Connelly vs Director of Public Prosecutions, , distinguished.