1. The plaintiff-respondent, Abdul Rashid, sued the defendant-appellant, Mt. Khurshid Begam, for restitution of conjugal rights. Two other defendants were joined in the suit, the second defendant Gulam Ahmad being the husband of the elder sister of Defendant 1's mother, and Defendant 3, Abdul Sattar, being Defendant 1's maternal uncle. The claim, as laid, was for a decree for restitution of conjugal rights against Defendant 1, while an injunction was craved for against the other two defendants prohibiting them from restraining the appellant's wife from coming to his house and residing with him. The two last defendants, however, raised a preliminary objection that the suit was bad against them because of want of territorial jurisdiction, and this issue was decided against the plaintiff in a preliminary finding given on 29-9-23 by the Subordinate Judge, as a consequence of which the suit proceeded against Defendant No. 1 alone.
2. The main facts of the case are sufficiently clear from the 1st Court's judgment. The Subordinate Judge gave the decree craved for against the first defendant and her appeal to the Court of the District Judge, Nagpur, also proved unsuccessful. There are really two points only involved in the present appeal by the 1st defendant. The first is as to whether the decision in the previous suit of the Munsiff, Wardha, (No. 55 of 1915), [cf. the copy of the judgment (P. 1)], was res judicata or not. In that suit the present appellant sought to question the validity of the marriage with her husband. The suit was dismissed by the Munsiff. An appeal to the Court of the Additional District Judge, Wardha, also proved unsuccessful, and a second appeal to this Court was unconditionally withdrawn without permission to bring a fresh suit.
3. The District Judge in dealing with the present case, after a full consideration of the decisions reported in Bhagwanbutti Chowdhrani v. Forbes(1) and Bishnu Priya Chowdhurani v. Bhaba Sundari Debya(2) came to the conclusion that the decision in the previous suit operated as res judicata on the matter of the validity of the marriage we are concerned with.
4. It does not appear to me that either of these decisions is of very much help in the circumstances of the present case. In them the main question involved was whether a plaintiff can evade the provisions of Section 13 of the old CPC by joining several causes of action against the same defendant in the subsequent suit and instituting it in a Court of superior jurisdiction. A similar remark applies to the decision in Sukhdeo v. Bhulal(3). As pointed out by the learned District Judge the point was fully considered in Ranganatham Chetty v. Lakshmiammal(4) by White, C.J As the learned Chief Justice therein pointed out, two principles seem to emerge from the earlier decisions quoted by him. One is that the plaintiff cannot add causes of action to the original one for the purpose of swelling the amount of the valuation and then say the original Court was incompetent to try this question. The other principle is that for the purpose of dealing with the question of res judicata it is open to the Court to split up, so to speak, the causes of action in the subsequent suit, and if it be found that one of these causes of action is the same as the cause of action relied upon in the earlier suit, then, although, taking all the causes of action together, the second suit may be said to be outside the jurisdiction of the original Court; still if the specific question be within the jurisdiction of the original Court and was determined by the original Court, it is no answer to say that the whole suit is beyond its jurisdiction.
5. It has been urged on behalf of the defendant-appellant that the decisions relied on by the learned District Judge in coming to the conclusion he did on the question of res judicata were inapplicable. It is suggested that the previous Court had no jurisdiction to try this suit as framed and that, therefore, it was open to the defendant-appellant again to urge the factum of the invalidity of her marriage. The decision in Gokul Mandar v. Pudmanund Singh(5) has been quoted in support of this position. But the facts of this case were peculiar and give very little help in the present instance, for their Lordships of the Privy Council did little more than enunciate the general principles of res judicata as laid down in Section 13 of the old CPC.
6. I have also been referred to the decision in Shibo Raut v. Babar Raut(6), but again there the facts of the case were highly peculiar and in a matter such as we are dealing with, the result of the application of the principle to the individual case must necessarily vary with the facts thereof.
7. For my own part with all deference I would have entertained some doubt as to the second principle enunciated by White, C.J, in the 25 Mad. L.J.R case quoted above. The language in which this second principle is enunciated seems to me to be perhaps dangerously wide and, if taken too literally, would entail a risk of a conflict with the statutory provision contained in Section 11 of the CPC. It seems to me, however, entirely unnecessary in the circumstances of the present case to go further into this question for the simple reason that the present suit, after the second and third defendants had been discharged, became purely one for a decree for restitution of conjugal rights, and the relief of injunction against the other two defendants was separately valued. The plaintiff accepted the position that the suit should be dismissed so far as the relief of injunction was concerned, and in those circumstances it seems to me perfectly clear that the Court in the previous suit would have been able to try this suit, in which the claim for restitution of conjugal rights is valued at Rs. 400 only.
8. I may add in this connexion that the present suit, even as originally framed, could very well have been split up into two separate suits: one against the present appellant for restitution of conjugal rights; and the other against her co-defendants for the relief of injunction.
9. Although the appeal so far fails on the question of res judicata, it seems to me that both the lower Courts have wholly failed to give due consideration to another aspect of this case. It has been strongly urged before me that the relief claimed by the plaintiff-respondent was a discretionary one which it was open to the Court to refuse even though the validity of the marriage was established. The soundness of this proposition cannot be questioned. In the case of Muhammadans a suit for restitution of conjugal rights is in the nature of a suit for specific performance, being founded on a contract of marriage, which the Muhammadan Law regards as a civil one. Even, therefore, if the validity of the marriage be established, the relief of restitution of ??? rights may be refused on such grounds as that its enforcement would be prejudicial or dangerous to the health, happiness or life of the wife: cf. Moonshee Buzloor Ruheem v. Shimsoolnissa Begum(7). In Hamid Husain…(Plaintiff); v. Kubra Begam…(Defendant).*(8) Piggot and Walsh, JJ., confirmed the dismissal of such a suit by the lower Court and in arriving at this decision one of the consideration taken into account was that the real reason for the bringing of the suit by the plaintiff was his desire to obtain possession of the defendant's property.
10. It has been suggested, however, on behalf of the respondent that no specific plea was taken on this issue by Defendant No. 1. This is, however, incorrect. In para. 4(h) of the Defendant 1's writ? ten statement, dated 22-10-23, the following passage occurs:
“Plaintiff and plaintiff's father and defendant are not also on good terms. There was much litigation between plaintiff and defendant and one execution case of the defendant is even now pending against the plaintiff, and so even if the alleged marriage be held proved and binding on the defendant, still it is impossible for the parties, i.e, plaintiff and Defendant 1, to live together as husband and wife.”
11. If this amounts to anything at all, it necessarily raised a matter which the lower Courts were bound fully to consider before granting the relief they did. As this matter will have to be the subject of enquiry by the Court below, it seems to me undesirable to go into details at present, but I may say that there is ample matter on the record to show that the plaintiff had been on the worst of terms with the defendant and her relations for years back. There was a struggle for possession of the moveable property and valuable immovable property, and apparently in execution proceedings even a warrant of arrest had issued against the plaintiff. All these matters required full consideration before the Court, in the exercise of its discretion, should have granted the decree it did. It will have to be carefully considered whether, if a decree for restitution of conjugal rights is granted, there will be danger to the health, life or safety of the appellant, and the lower appellate Court will also have to consider whether the suit has been brought for the bona fide purpose of obtaining the relief claimed therein, or whether the real object of the plaintiff is to obtain possession of the property, which has been the bone of contention between the parties for years past. I accordingly remand the case to the lower appellate Court for a finding on the following issues:
(1) If a decree for restitution of conjugal rights is granted to the plaintiff-respondent, is there likely to be a danger to the life, health or safety of the defendant: appellant?
(2) Is there any other reason why the Court should not exercise its discretion in favour of plaintiff.
12. Should the Court, in the exercise of its discretion, find it necessary to consider the question of granting or refusing the relief claimed on any other relevant ground, the lower appellate Court should take further pleadings from the parties in this connexion, and if further evidence be necessary, it will be at liberty to have that evidence recorded by the Judge of the first Court, but the District Judge must in due course record his own findings on the points involved and submit them to this Court. The findings should reach this Court by 1st April and thereafter 15 days will be allowed for filing of objections thereto and the appeal will be finally heard on 15th April. The costs of this remand will follow the event.
13. Case remanded.