@JUDGMENTTAG-ORDER
1. The three petitioners, who are related as daughter, mother and father and stand impleaded as Respondent Nos. 1 to 3 respectively in the Matrimonial Petition No. 172 of 1997 filed before the Court of Judge, Family Court, Allahabad (Respondent No. 2) by Respondent No. 1 u/s 10 of the Hindu Marriage Act seeking grant of a decree for divorce of petitioner No. 1 dissolving their marriage and for a declaration that it is null and void as contained in Annexure 1, have knocked the doors of this constitutional Court taking aid of Articles 226 and 227 of the Constitution of India for (i) quashing by grant of writ of Certiorari the proceedings of Matrimonial Petition No. 172 of 1997 aforesaid (ii) and restraining respondent No. 2 by grant of a writ of Prohibition from proceeding with the aforementioned petition.
2. Paragraph Nos. 1 to 13 of the Matrimonial Petition aforementioned reads as follows -
" 1. That the petitioner is resident of village Chandauki, Pergana Sikandra, Tehsil Phulpur district Allahabad and the petitioner is about 30 years of age.
2. That the respondent No. 1 had been living with opposite parties 2 and 3 in IFFCO Unit Phulpur, Allahabad in the year 1989.
3. That the petitioner and respondent No. 1 carne in friendly contact with each other and this friendship developed into deep love and affection and out of that love the petitioner and respondent No. 1 on their own sweet will and consent came to Allahabad city and in Hanumanji Mandir at Bandhwa, Allahabad, as river Ganges, garlanded each other and became wife and husband on 5th Dec., 1989.
4. That after the marriage before Hanumanji at Bandhwa on 5-12-1989. the petitioner and respondent No. 1 came to petitioner''s house in village Chandaukt and both used to live as husband and wife. The respondent No. 1 performed her marital obligations with the petitioner being his wife.
5. That after a gap of two months, when the respondent Nos. 2 and 3 came about the Gandharv marriage of the respondent No. 1 with the petitioner, they came to the house of the petitioner and became annoyed but compelled by the circumstances they want back to their residence at IFFCO Phulpur.
6. That during the course of marriage the presents of the petitioner gave ornaments of Rs. 80,000/- and clothes of Rs. 20,000/- to the respondent No. 1. The respondent No. 1 was fully satisfied with the treatment, love, affection and behaviour of the petitioner and his parents and had been living happily as wife of the petitioner.
7. That however, the respondent No. 3 came to the house of the petitioner again after 3 months and requested the petitioner and his parents to send the respondent No. 1 for some period and the petitioner and his parents on his request, sent the respondent No. 1 with respondent No. 3 along with ornaments and clothes and some cash for her expenses.
8. That during this period the respondent No. 3 without any information to the petitioner managed his transfer from IFFCO Phulputr Unito Kalole Unit Gujarat and stealthily took with him the respondent No. 1 along with him.
9. That when the petitioner knew about the transfer of the respondent No. 3, he made several correspondence and went to the respondents at Gujarat but the respondents Nos. 2 and 3 did not even allow the petitioner to meet his wife the respondent No. 1.
10. That about 5 years have passed but despite best efforts made by the petitioner and his parents, the respondents 2 and 3 did not send the respondent No. 1 to the petitioner.
11. That due to living away from the respondent No. 1 petitioner is leading a deserted life. He has not been allowed by the respondent Nos. 2 and 3 to live and enjoy with his own wife and is facing great mental and physical torture.
12. That the respondent No. 1 is living separately with the petitioner for the last 5 years and there is no hope that she will come and live with the petitioner and perform her marrital obligation hence it is expedient that the decree of judicial separation be passed against the respondent No. 1 and in favour of the petitioner.
13. That cause of action of this petition arose firstly on 5-12-1989 when marriage was solemnized and thereafter on 20-12-1995 when the respondents refused to make Bidai of respondent No. 1 and the same is still continuing within the jurisdiction of this Hon''ble Court and this Court has jurisdiction to try the petition."
3. The facts alleged by the petitioners are in a narrow compass, which are as follows :
(a) Petitioner No. 3 was Production Manager of Phulpur Unit of IFFCO, an important urea producing fertilizer unit of the Country. He was residing in IFFCO Township known as Ghiya Nagar. He later on became its Joint Manager and even General Manager.
(b) Petitioner No. 1 after graduation from Sofia College, Ajmer in 1988 came to IFFCO township. She joined Megabite Computer Academy, a private Institute running part time computer classes.
(c) Respondent No. 1 Amit Misra, who at times calls himself O.P. Misra or A.K. Misra was in the said institute.
(d) The security section of the IFFCO reported that Amit Misra was causing nuisance by teasing and harassing the girls and boys of the employees travelling by IFFCO Bus for which he was also warned a number of times. On 8-6-1990 the security staff even filed a First Information Report against respondent No. 1 (copy appended as Annexure 10) who had no contacts with petitioner No. 1.
(e) Petitioners left to Kalol, Gujarat. Petitioner No. 1 started receiving letters in bad taste and filthy language purported to be sent by Amit Misra/ O.P. Misra/ A. K. Misra at the official address to petitioner No. 3 which were ignored.
(f) Respondent No. 1 filed Habeas Corpus Writ Petition No. 2883 of 1990 in this Court alleging, inter alia , that he has solemnized his marriage with petitioner No. 1 in a temple by garlanding each other who started living as husband and wife, that petitioner No. 1 was forcibly taken away by petitioner No. 3 to Gujarat, who has been illegally detained against her sweet will and confined a locked house, that petitioner No. 3 did not allow him to see her, that this Court called petitioner 1. recorded her statements on 10-4-1991 (copy appended as Annexure 11) and thereafter disrnissed''the said writ petition with special cost of Rs. 5,000/- in favour of petitioner No. 3 vide Judgment and Order dated 18-4-1991 (copy appended as Annexure 4) after considering the statement of Monika Ohri denying the claim made by the Respondent No. 1.
(g) Hardly the ink of the aforesaid judgment had dried, respondent No. 1 filed Matrimonial Petition No. 397 of 1991 u/s 9 of the Hindu Marriage Act, in May, 1991 before respondent No. 2 (copy appended as Annexure 5) impleading petitioner Nos. 1 and 3 as respondent Nos. 1 and 2 respectively claiming solemnization of his marriage with petitioner No. 1 for granting a decree for restitution of his conjugal rights against petitioner No. 1 and to direct her to perform her conjugal duties towards him without any interference by petitioner No. 3. Vide Judgment and Decree dated 16-11-1992 the said petitioner was decreed ex parte by respondent No. 2. The said decree was challenged by petitioner Nos. 1 and 3 respectively before this Court in First Appeal No. 37 of 1993. which after contested by respondent No. 1 , was allowed vide Judgment and Decree dated 22-1-1997 [as contained in Annexure 7) and the decree dated 16-11-1992 was set aside the petition was dismissed with cost throughout.
(h) Petitioner No. 1 was married and she is living with her husband. The particulars of this marriage and their residential address are deliberately being avoided lest respondent No. 1 harass her.
(i) The facts aforementioned show that Matrimonial Petition No. 172 of 1997 has been filed mala fide with false allegation only with the object to harass and humiliate the petitioners.
4. Vide order dated 8-9-1997 notice of this writ petition was directed to be issued to respondent No. 1 making the Rule returnable within a month and the proceedings in Matrimonial Petition No. 172 of 1997 pending in the Court of Judge, Family Court, Allahabad, was also stayed until further orders. Notice with registered post and acknowledgment due was issued by this Court fixing 13-10-1997.
4.1. We presume service of notice on respondent No. 1 in view of the provisions as contained in Section 27 of the General Clauses Act, 1897 and of his knowledge of the pendency of this writ petition due to stay of his Matrimonial proceedings.
5. No Counter affidavit has been filed by respondent No. 1 denying the apparent facts aforementioned.
The Submissions :--
6. Sri Murlidhar, learned Senior Counsel appearing on behalf of the petitioners, contended as follows :--
In view of the express findings twice recorded by this Court in its writ jurisdiction and the matrimonial jurisdiction the second Matrimonial Petition filed by respondent No. 1 is outright mala fide, the Judge Family Court could not by any stretch of Imagination go against the express findings recorded twice by this Court and thus it would be in the interest of justice and not prevent abuse of the process of the Court that the Matrimonial Petition be dismissed and the proceedings instituted thereon be quashed. He further contended that the Constitution of India guarantees the petitioners to lead a meaningful peaceful life which has apparently been attempted to be breached by the respondent No. 1 through the agency of the Family Court by dragging them to appear in the State of Uttar Pradesh before it.
7. Following two questions crop up for our considerations :--
(1) Whether in view of the findings twice recorded by this Court firstly in the Habeas Corpus petition that it was mala fide instituted against petitioner Nos. 1 and 3 for which he was saddled with cost of Rs. 5,000/-, and secondly, while exercising its appellate matrimonial jurisdiction in dismissing the application filed u/s 9 of the Hindu Marriage Act by respondent No. 1 for restitution of his alleged conjugal rights with petitioner No. 1, the third proceeding filed u/s 10 of the Hindu Marriage Act viz. Matrimonial Petition No. 172 of 1997 is an abuse of the process of the Court ?
(ii) Whether in the peculiar facts and circumstances this Court should remain a silent spectator and allow to continue the 2nd Matrimonial proceedings instituted by respondent No. 1 before respondent No. 2 or exercise its extraordinary jurisdiction under Arts. 226 and 227 of the Constitution of India or its inherent powers in favour of the petitioners ?
Our Findings :--
8. Let us first remind ourselves what are the true nature and scope of Writs of Prohibition and Certiorari.
8.1. We are of the considered view that a writ of prohibition and a writ of certiorari are two complementary writs. A writ of certiorary is issued requiring that the record of the proceedings in some cause or matter pending before an inferior Court be transmitted to the superior Court to be dealt with, for rectifying an order of proceeding. A writ of prohibition is issued for preventing a Tribunal from continuing a proceeding pending in it on the ground that has no jurisdiction to hold the proceeding. A writ of certiorary is remedial where as writ of prohibition is preventive.
8.2. In Short and Mellor''s Practice of the Crown Office, 2nd Edition, a writ of prohibition is explained as being a judicial writ or process issuing out of a Court of superior jurisdiction, directed to an inferior Court for the purposes of preventing the inferior Court from usurping a jurisdiction with which it is not legally invested or to compel Courts entrusted with judicial duties to keep within the limits of their jurisdiction.
8.3. In
8.4.
9. It is settled law that exercise of inherent powers has its root in necessity. In Nawabganj Sugar Mills Company Ltd. v. Union of India AIR 1976 SC 1162 at page 1155 (Paragraph 6) it was observed that held by the Hon''ble Supreme Court as follows :--
"The difficulty we face here cannot force us to abandon the inherent powers of the Court to do "The inherent power has its roots in necessity and its breadth is coextensive with the necessity". Certainly, we cannot go against any statutory prescription, Had India had a developed system of class actions or popular organization taking up public interest litigation, we could have hoped for relied otherwise than by this Court''s order. We lag in this regard, although people are poor and claims are individually trial Legal aid to the poor has a processual dimension. As things stand, if each victim were remitted, to an individual suit, the remedy Could be illusory for the individual loss may be too small, a suit too prohibitive in time and money and the wrong would go without repress. If there is to be relief, we must construct it hereby simple legal engineering." (Underlining by us).
10. The Legislature vide Order VI, Rule 16 of the CPC recognizes the jurisdiction of the Courts to struck of any matter in any pleading which may be scandalous, frivolous or vexatious or which is otherwise abuse of the process of the Court.
11. The fate of the first round of litigation instituted by respondent No. 1 before this Court :--
It is relevant to reproduce the order dated 18-4-1991 dismissing Habeas Corpus Petition No. 28883 of 1990 filed by respondent No. 1 against petitioner Nos. 1 and 3 respectively :--
"A writ petition under Article 226 of the Constitution for issuing a writ of habeas corpus was filed by the Amit Mishra for setting at liberty Monika Ohri, opposite party No. 2. According to the allegations in the writ petition, the petitioner stated that Monika Ohri was student at Megawyte Computer Academy Institution. 1/4 Prayaj Street, New Katra, Allahabad where the petitioner was also a student. He stated that he was a brilliant student and Monika Ohri was attracted towards him. He has referred and annexed a number of letters, alleged to have been sent by her to him. The said letters are said to be the love letters sent. The petitioner stated that he was married with Monika Ohri by exchanging garlands with each other in a temple. After the alleged marriage they started living together as husband and wife. It is alleged that after the marriage the father of Monika Ohri was highly annoyed and became angry and abused the petitioner with filthy language. The petitioner further stated that in spite of the aforesaid incident of abusing him by Monika''s father, Monika came and stayed with the petitioner as his wife. Thereafter it is stated that the father of Monika Ohri confined her and locked in the house. The respondent No. 1 further stopped Monika Ohri from going to the Institution. He himself got transferred from IFFCO Phulpur to IFFCO, Kolol Unit, Candhi Nagar, Gujarat. It was stated that on account of the coercion and wrongful confinement, Monika Ohri was restrained and detained by her father Indrajit Ohri at Gandhi Nagar, Gujarat.
After this writ petition was filed, notices were issued to the respondents. Counter affidavits of Indrajit Ohri and Monika Ohri were filed. Another supplementary affidavit was also filed by Monika Ohri.
The facts alleged in the writ petition were denied. It was specifically stated that the petition has been filed to blackmail and defame the respondents. The writ petition was finally heard by me on 6-3-1991. on which date after hearing the learned counsel for the respondent, since at that time counsel for the petitioner was not present in the Court, I was going to dictate my judgment. In the mean time, the learned counsel for the petitioner appeared before the Court and made his submission. He stressed that the affidavit of Monika Ohri and a supplementary affidavit filed are fake documents, since it were sworn at Delhi before the Public Notary. It was alleged that no reliance can be placed on the said affidavits filed by Monika Ohri. It was alleged that an order be issued to the respondents No. 1 to produce Monika Ohri before the Court, so that her statement be recorded before the parties.
After hearing the learned counsel for the petitioner, although I was not inclined to accept the request of calling the opposite parties from Gujarat for making a statement when there was already a Counter Affidavit and supplementary affidavit filed by Monika Ohri on oath before the Public Notary, since the genuineness of the statements and signature of Monika Ohri was doubted, a condition was imposed that an amount of Rs. 5000/- be deposited by the petitioner, so that in case the petition fails, the expenses for coming up and down to Allahabad from Gujarat and cost etc. may be met with the said deposit. It appears that the petitioner deposited the said amount and a receipt of the deposit has been filed in the Court.
Today Monika Ohri and her father have appeared and are present before the Court. The petitioner himself is not present. The counsel for the petitioner has no objection to get the statement of Monika Ohri recorded today. Monika Ohri was identified by the learned counsel for the respondent Sri Vijai Ratan Agarwal that she is the same girl. She stated her age to be 22 years, which I assess to be correct. She has made a statement on oath which is already on record.
After considering the statements of Monika Ohri, I am clear that she is not under wrongful confinement or detention by any one. She has come along with her father Indrajit Ohri and she desires and stated that she would go and stay with her father. The petitioner has not been able to make out any case of wrongful detention of Monika Ohri.
This is one of those cases which calls for exemplary award of cost besides award of expenses for coming to Allahabad from a distance of 1000 kms. The petitioner has not taken care in making false allegations against an unmarried girl. It is very easy to make allegation against an unmarried girl which causes lot of anguish and harass-ment. In the circumstances. I consider that an award of Rs. 5000/- for meeting the expenses for coming of Allahabad from Gujarat and damages would meet the ends of justice. The amount of Rs. 5000/- deposited by petitioner with the Registrar may be paid to the opposite party No. 1 Inderajit Ohri either by cheque or bank draft.
In view of the facts and circumstances, stated above, the petition for habeas corpus fails and is dismissed."
12. The second round of the litigation and its fate instituted by respondent No. 1 before: respondent No. 2 :--
It is also relevant to reproduce the relevant part of the Judgment dated 22-1-1997 of this Court in First Appeal No. 37 of 1993 filed by petitioner Nos. 1 and 2 against the Decree dated 16-11-1992 to the Judge, Family Court, Allahabad allowing Matrimonial Petition No. 397 of 1991 filed by respondent No. 1 against petitioner Nos. 1 and 2 and granting decree for restitution of his conjugal rights -
"....... the first pre-condition for the exercise of Jurisdiction by the family Court u/s 9 is the existence of a legally valid Hindu Marriage between the parties.
In this judgment, the family Court judge has made only the following discussions of the evidence.
"WADI NE APNE KATHAN KE SAMARTHAN ME SWYAM KA SHAKSHYA BATAUR P.W. 1 DIYE WADI DWARA DIYA GAVE SAKSHYA SE WAD PATRA KE KATHAN KA SAMARTHAN HONA PAYA JATA HAI. WADI PRATIWADINI KE VIRUDH VAIVAHIK DAMPATYA ADHIKARO KI PRATYASTHAPAN KE DEGREE PANE KA ADHIKARI HAI."
This was a casual approach to such a serious matter which is to be deprecated. Even an ex parte judgment is required to be on merits. He has to give reasons for being satisfied that the essentials required by Section 9 of the Hindu Marriage Act have been satisfied. He was bound to give a finding that a legally valid marriage was solemnized between petitioner and respondent No. 1 before him and that the wife had withdrawn from the society of the husbands without any lawful excuse.
In the present case, we have already noted that both the respondents in the Matrimonial Petition had categorically denied in their written statement which were in the form of affidavits, the allegation of marriage, and even the copies of Habeas Corpus Petition and its reply and her statement therein and the copy of the judgment of the High Court in the Habeas Corpus were filed there with and so were on record before the judge, family Court. There in the Habeas Corpus Petition, this Court observed while rejecting the petitioner;
"After considering the statement of Monika Ohri, I am clear that she is not under wrongful confinement or detention by any one. She has come along with her father Indrajeet Ohri and she desires and stated that she would go and stay with her father. The petitioner has not been able to make out any case of wrongful detention of Monika Ohri.
This is one of those cases which call for exemplary award of cost besides award of expenses for coming to Allahabad for a distance of 1000 kms. The petitioner has not taken care in making false allegations against an unmarried girl. It is very easy to make allegation against an unmarried girl, which causes lot of anguish and harassment. In the circumstances, I consider that an award of Rs. 5000/- for meeting the expenses for coming of Allahabad for Gujarat and damages would meet the ends of justice."
He had to take into account the fact that both the respondents in the petition before him had categorically denied the factum of marriage and also to take notice of the observations made by this Court in the said Habeas Corpus writ petition. Against this background, he was bound to scrutinise the record even more and not blindly accept the bare statement of the petitioner Amit Mishra given before him on oath before passing the decree. In the sole statement on oath about the factum of marriage, given by him the petitioner Amit Mishra said.
"MERI SHADI PRATIWADI NO 1 SMT. MONIKA OHRI SE HUYEE THI, MERI SHADI PRATIWADI NO. 1 SE DECEMBER, 1989 KO HINDU RITI RIWAJ SE HUYEE THI."
In his petition in para 1 he said that the petitioner and the respondent No. 1 performed their marriage in a temple by garlanding each other in the month of December, 1989 according to their own sweet will and consent. In para 7 of the petition, he said that in this way the marriage of the petitioner and the respondent No. 1 was solemnized. There was no allegation any where therein that a regular marriage was performed according to Hindu Rites on that or on any subsequent date. Then in para 9 of the same petition, it was said that he prayed to the respondent No. 2 for the hand of respondent No. 1, but there was no allegation in the petition that after the said date, at any subsequent date the marriage was solemnised between the parties, according to Hindu Rites. It may also be mentioned here that in the Habeas Corpus Petition preferred by Amit Mishra before the High Court on 25-10-1990 before filing of this Matrimonial petition, it was said that the petitioner solemnized his marriage with the respondent No. 2 in a temple by garlanding each other but he has not given the date, month and year when the alleged garlanding took place and where. Even in the rejoinder affidavit filed in the Habeas Corpus Petition, he did not disclose it. Then in this Habeas Corpus Petition and in his rejoinder affidavit therein he never made the allegation that the marriage was made on the date of garlanding or at any subsequent date according to Hindu Rites. In the matrimonial Petition he alleged that the garlanding took place In December, 1989 but even then did not disclose the date of garlanding. He also did not disclose the name of the temple where it took place.
It will be seen, that neither in the Habeas Corpus petition nor in the Matrimonial Petition, there is any allegation of marriage having been performed according to Hindu Rites. Now when the petitioner gave his statement on oath at the ex parte hearing before the family Court, he did not testify that any garlanding took place in any temple in December, 1989 on any date. What he testified was that in December, 1989 his marriage took place according to Hindu rites. So he did not testify at the hearing to the allegation of marriage by garlanding and what he testifide at the hearing was not alleged in his Matrimonial petition. Thus, his testimony at the hearing is inconsistent with his pleadings. It is also noteworthy that he concealed the fact about the filing of Habeas Corpus Petition by him and its dismissal in his Matrimonial Petition. We have noted the categorical denial of the marriage in the written statement filed by the respondents in the Matrimonial Petition, go we have no doubt that the testimony of Amit Mishra about the factum of marriage could not be believed and merited rejection.
In the Matrimonial Petition, Amit Mishra had referred to the marriage by garlanding in temple in para 1 and then stated in para 7 that after solemnisation of the marriage in this way, he and Monika Ohri started living as husband and wife behind the back of the respondent No. 2. There was no disclosure as to for how long they live together as husband and wife. Then there were allegations that aggrieved with the game of hide and seek, he asked her to obtain the permission and consent of her parents and that on her suggestion to start visiting to her residence he started visiting and her residence off and on and during the course of the same, he prayed for the hand of Monika Ohri and narrated the story of marriage and love affair and after he left the house of Monika Ohri, her father beat her and warned her that she would not make any tough with him, that when on the next day, he learnt from her about it in the computer institution, he consoled her that he would try his best to specify her father, that after some time, he went to her father but he became furious on seeing him, that from that day onwards she used to be sent to the computer institution in tight security, that she sent a letter to him, that he approached the police but to no effect, that then her father got himself transferred to Gujarat and shifted there along with the ornaments and articles provided to her by him (Amit Mishra), that her father then shifted from Gujarat to Delhi together with her and subsequently when he learnt that she is being remarried by force, he tried to contact her father but having failed, brought this petition.
In the said Matrimonial Petition, there was no allegation that he and Monika lived together for 5-6 months, that her parents visited his house and they prayed for Vida of Monika Ohri on the pretext of marriage in relationship and that thereupon, he made her Vida with her parents and further that at that time, she took with them all the articles and clothes given to her as disclosed in Annexure 1 of the Matrimonial Petition.
Yet, this is precisely what he testified in his statement on oath at the ex parte hearing of the Matrimonial Petition on 4-11-1992. He testified that the marriage took place with Mamta Ohri in Dec, 1989 according to Hindu Rites, that after the marriage, she came by Vida to his house, that he and her started living happily together, that for about 5-6 months, they lived together and in this period, her parents came to his house and said that there is marriage in their relationship and prayed that Monika Ohri be sent in Vida with them for some days, that on this they (the persons of Amit Mishra''s family) sent Monika with her parents in Vida and at the time of that Vida and at the time of that Vide, she took with her all the articles and clothes mentioned in the annexure of the Matrimonial Petition and that after her going, he himself went to Gujarat to fetch her where she lived with her parents and that on his going there, her father scolded him and made him to run and declined to make Vida and gave no reason for the same and she also declined to go with him without assigning any reason. It will thus be seen that the story narrated in the Matrimonial Petition and the story narrated in the petitioner''s statement on oath dated 4-11-1992 are substantially discordant, in many further ways apart from the basic inconsistency between the allegation of marriage by garlanding in temple and the testimony o� marriage according to the Hindu Rites. The story in the matrimonial petition was that after the garlanding, the two secretly maintained their marital relation so that the marriage remained concealed from her parents with whom she continued to live and being fed up with this manner, at her asking, he developed contact with her parents and influenced them favourably and during the course of one discussion, he prayed from her father for her hand and narrated the story of marriage by garlanding and the love affair, but his proposal (the proposal of Amit Mishra) was rejected and restrictions were put on her meaning thereby, that she stood by him (Amit Mishra) but was detained by her father under duress. In his statement at the ex parte hearing, there was nothing like a secret marriage and keeping of a secret association between the two, and also nothing like an approach by Amit Mishra to the parents of Monika Ohri and the spurning of the same by Monika''s father. Instead, there is a categorical statement of a normal Hindu marriage which involves the consent and participation of the parents of the boy and the girl and it has not also been said by him on oath that for 5-6 months, he and Monika Ohri lived together as husband and wife. In the story set out in the matrimonial petition, there was no occasion for any Vida of Monika Ohri from his house because she always lived with her parents and the allegations meant only casual meetings between the two (Amit Mishra and Monika Ohri) behind the back of her parents. Yet in his statement on oath before the judge, family, Court, he claimed that the parents of Monika Ohri came to his house and took her with them in Vida on the pretext of a marriage in their relationship as also took with her all the articles and clothes given to her.
Another point to be noticed is that according to the matrimonial petition, she was being withheld by her father and was sought to be remarried against her wishes and when he tried to meet her, he was not allowed to do so. In other words, Monika Ohri was upholding the marriage and it was her father who was obstructing it is per the case in the Matrimonial Petition. On the other hand, in his testimony on oath at the hearing of the Matrimonial Petition. Amit Mishra claimed that when he went to Gujarat to fetch Monika from there i.e. like the ordinary course of marital relations in which husband goes to his in-laws house to fetch his wife after her having lived with the parents for some time, he not only testified to the refusal of Vida by her father but also refusal on the part of Monika Ohri to go with him. Thus, the version taken in the Matrimonial Petition and the story narrated by the petitioner Amit Mishra in the statement on oath at the hearing of the petition cannot be reconciled with each oath in any manner. All this also goes to show that the narration of facts by Amit Mishra in the Matrimonial Petition and also the narration of facts by him at the trial about all the material facts were a tissue of lies and that neither a marriage took place in any manner between Amit Mishra and Monika Ohri, nor the two ever lived together as husband and wife . It is accordingly held that no marriage ever took place between Amit Mishra and Monika Ohri in Dec. 1989 or any date and nor the articles given in Annexure 1 of the Matrimonial petition were ever given by Amit Mishra to Monika Ohri nor were any such articles taken away by her from the house of Amit Mishra at any time.
When no marital rights were ever created between Amit Mishra and Monika. Ohri. Monika Ohri never became the wife of Amit Mishra and so Amit Mishra could not claim that his wife has withdrawn from his society. Consequently, he could not legally maintain any petition for restitution of conjugal rights against her.
Consequently, this appeal is allowed. The judgment and decree passed by the Judge, Family Court dated 16-11-1992 in Matrimonial Petition No. 397 of 1994 Amit Mihsra v. Monika Ohri and another is set aside and the Matrimonial Petition for restitution of conjugal rights is dismissed with costs throughout."
13. In
"..... The nature of the former proceeding is immaterial.
61. We do not see any good reason to preclude such decisions on matters in controversy in writ proceedings under Article 226 or 32 of the Constitution from operating as res judicata in subsequent regular suits on the same matters in controversy between the same parties .........."
14. Sections 9 and 10 of the Hindu Marriage Act read as follows :--
"9. Restitution of conjugal rights -- 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 proving reasonable excuse shall be on the person who has withdrawn from the society.
10. Judicial separation -- (1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in Sub-section (1) of Section 13, and In the case of a wife also on any of the grounds specified in Sub-section (2) thereof, as grounds on which a petition for divorce might have been presented.
(2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the Court may, on the application by petition of either party and on being satisfied of the truth of the statements made in the such petition, rescind the decree if it considers it just and reasonable to do so."
15. A bare perusal of these two provisions show that for Initiating any action there has to be marriage between the parties and then only one can claim restitution of conjugal right or judicial separation.
16. On the findings recorded earlier by this Court, our answers to both questions formulated by us have to be in the affirmative. The reasons are apparent. Having examined the earlier pleadings set forth by respondent No. 1 in his Habeas Corpus Petition (as contained in Annexure-3), the first Matrimonial case filed by him seeking restitution of conjugal rights (as contained in Annexure 5) and the instant matrimonial petition seeking grant of a decree of judicial separation and for dissolving his alleged marriage with petitioner No. 1 and for its declaration as null and void (as contained in Annexure 1) we are of the firm view that the facts pleaded earlier by him which were disbelieved twice by this Court have been reiterated suppressing the factum of twice dismissal of his claim on merits by this Court. The findings recorded by this Court firstly on its constitutional side while adjudicating the Habeas Corpus Petition filed by respondent No. 1 and secondly on its first appellate side arising out of matrimonial matter steer on his face and binding hand i and foot and speak volumes against his conduct who very cleverly, candidly and mala fide suppressed them in his 2nd matrimonial petition. The findings recorded earlier that there was no marriage at all between respondent and the petitioner No. 1 was and would stare on the face of respondent No. 1 unless it is set aside by a compe-tent Court. Since the very fact of dismissal of the application filed for restitution of his alleged conjugal rights have been apparently suppressed in the petition we will presume that the decree granted by this Court had attained its finality. It was thus mala fide suppressed by respondent No. 1 from the Judge, Family Court. Allahabad for apparent reason namely that by taking recourse to falsehood in claiming that the respondent was married with respondent No. 1 thereby to harass the petitioner No. 1 so that her married life could be jeopardized. Since there was no marriage solemnized at all where was any question of any Judicial separation between the petitioner No. 1 and the respondent No. 1.
17. The Judge, Family Court cannot by any stretch of imagination go behind the decree passed by this Court dismissing the claim of respondent No. 1 that he had solemnized the marriage with petitioner No. 1.
18. The pleadings set forth by respondent No. 1 in his Matrimonial Petition No. 172 of 1997 come within the category provided under Order VI, Rule 16 of the Code of Civil Procedure.
19. In the instant case respondent No. 1 wants to confer a jurisdiction in the Judge, Family Court, Allahabad to re-adjudicated the question of existence of his marriage with petitioner No. 1 which in view of the findings recorded by this Court cannot be adjudicated by him. Petitioner No. 1 is a married lady. Article 21 of the Constitution of India guarantees her to lead a dignified life. This is a constitutional protection. The High Court being protector of such a fundamental right of the petitioner No. 1 cannot allow respondent No. 1 to be villain to disturb her peaceful married life and coerce her to come to Allahabad and contest the Family Court proceeding containing scandalous allegations once again.
20. In the peculiar facts and circumstances we are of the view that there will be a failure of justice if this Court, having exercised its jurisdiction twice earlier, will remain a silent spectator and allow a mala fide proceeding to continue and wait for its dismissal after relying upon the earlier two verdicts /judgments of this Court. Powers to issue writ of Certiorari and Prohibition under Articles 226 and 227 of the Constitution of India and inherent powers are implicit under Article 226 of the Constitution of India.
21. Consequently exercising those powers vested in this Court we reject Matrimonial Petition No. 172 of 1997 filed by respondent and quash the proceedings instituted on that basis and prohibit the Court of Family Judge, Allahabad to do anything at the instance of respondent No. 1 under the provisions of the Family Courts Act against the petitioners and make the Rule absolute.
22. As respondent No. 1 has not appeared, we make no order as to cost.
23. Let a copy of this order be dispatched by the office to the Judge, Family Court, Allahabad (respondent No. 2) for a follow up action.
