G.B. Pattnaik, J.
1. Defendant is the appellant against a confirming judgment in a suit for restitution of conjugal rights.
2. It was alleged in the plaint that the plaintiff and defendant were married on 2-3-1969 and the marriage was duly consumated and they were living as husband and wife, but they did not have any issue. They continued as such till 1973 when the defendant began to illtreat the plaintiff mostly on account of the fact that no child was born. The plaintiff was driven out of the husband's house in September, 1973. She then sent a registered notice on 8-3-1974 but the defendant denied the allegations made in the notice. In reply to the registered notice, the defendant alleged that there has been no marriage between the plaintiff and defendant. On these allegations, the suit was filed for the relief of restitution of conjugal rights.
3. The defendant in his written statement denied all the allegations made in the plaint. According to the defence case, the defendant had married the daughter of Ponada Poliga and there had been no marriage between the plaintiff and the defendant. The defendant also averred that on the basis of false complaint, a case under Section 494, IPC has been registered in the file of the S.D.J.M., Berhampur. On these averments, it was prayed that the suit is liable to be dismissed.
4. Four issues were framed on the aforesaid pleadings, and on the question whether the plaintiff is the wife of the defendant or not, the trial Court came to the conclusion that the plaintiff had married the defendant and they had also lived as husband and wife for a period of four years after its consumation. On issues 2 and 3, the trial Court held that the plaintiff is entitled to restitution of conjugal rights and there is cause of action for the suit. On these findings, the trial Court decreed the suit.
5. On an appeal being carried by the defendant, the lower appellate Court confirmed the findings that plaintiff had married the defendant in the year 1969 and she remained with him as husband and wife for four years and subsequently she had been deserted by the defendant and accordingly the appeal was dismissed. The defendant has, therefore, filed the present Second Appeal.
6. Mr. Rath appearing for the appellant raised two contentions in assailing the confirming judgment of the two Courts below :
(i) the defendant having been prosecuted under Section 494, IPC and having been acquitted on a finding that there was no marriage between the plaintiff and the defendant, the said finding is binding on the Civil Court, particularly in view of Explanation VIII to Section 11 of the Code of Civil Procedure and ignoring the said finding has vitiated the ultimate conclusion, and
(ii) even if the conditions stipulated in Section 9(1) of the Hindu Marriage Act are satisfied, the Court has still the discretion not to grant the relief depending upon the circumstances of each case and on the facts and circumstances of the present case, the Court should not have granted the relief of restitution,
Both the contentions require careful examination.
7. So far as the first submission is concerned, Mr. Rath appearing for the appellant contends that the finding of the criminal proceeding under Section 494, IPC that there was no valid marriage between the present plaintiff and defendant is a finding of a Court of limited jurisdiction within the meaning of Section 11 of the Code of Civil Procedure and therefore, such a finding must be held to be binding on the Civil Court when the question of marriage between the plaintiff and defendant is in issue. According to Mr. Rath, Explanation VIII to Section 11, which was introduced by way of amendment, clearly indicates that an issue heard and finally decided by a Court of limited jurisdiction competent to decide such issue shall operate as res judicata in a subsequent suit notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised. In my opinion, to attract Explanation VIII, an issue in question must have been answered in a former suit between the parties though it may be by a Court of limited jurisdiction. An order of acquittal passed in a proceeding under Section 494, IPC will not attract the provisions of Explanation VIII to Section 11, CPC. In the case of Chowdhury Prafulla Chandra Routrai and Ors. v. Indramani Baral and Ors., 39(1973) CLT (notes) 30. It was held by this Court that an acquittal in a criminal case does not raise a presumption as to possession or dispossession and merely because of the acquittal of the accused personal in the Criminal Court, it could not be presumed or inferred that the accused persons continued in possession of the suit land and the plaintiff was dispossessed therefrom and the question of possession has to be decided by the Civil Court. In AIR 1966 Mad. 425, Krishna Asari and Anr. v. Adaikalam and Ors., an identical question came up for consideration as to whether in application for compensation for the death caused by the vehicle driven by the respondent in that case can be rejected on the ground that the petitioner is acquitted of the charge under Section 324A, IPC. It was held by the learned judge that a decision of the criminal case could not be relied on as a binding one in a civil action. In coming to the aforesaid conclusion, the learned judge relied upon the cases of Hollington v. Hewthorn and Co., (1943) 1 KB 587, Anil Behari v. Latika Bala Dassi, AIR 1959 S.C. 566, Shubrati v. Shamsuddin, AIR 1928 All. 337 and Venkatapathi v. Salappa, AIR 1933 Mad. 429. A judgment of acquittal can be used only to establish the fact that the acquittal has taken place as a fact but the acquittal of an accused in a criminal case on a finding that there has been no marriage between the complainant and the accused cannot be said to be binding on the Civil Court in a suit for restitution of conjugal rights and the Civil Court must consider the evidence on record and come to its own finding thereon. In this view of the matter, I am unable to accept Mr. Rath's contention and hold that no error has been committed by the two Courts below in deciding the issue with regard to the marriage between the plaintiff and defendant notwithstanding the judgment of the Criminal Court. The first contention of Mr. Rath is accordingly rejected.
8. So far as the second contention is concerned, I also do not find any force in the same. It is no doubt true that the Court will have a discretion to grant the relief of restitution depending upon the circumstances of the case, under Section 9 of the Hindu Marriage Act, the foundation of the right to bring a suit for restitution of conjugal rights is the fundamental rule of matrimonial law that one spouse is entitled to the society and comfort of the other spouse, and where either spouse has abandoned or withdrawn from the society of the other without reasonable excuse or just cause, the Court should grant a decree for restitution. The Court has a duty to enquire into and pass a decree for restitution after satisfying itself that there is bona fide desire of the petitioner to resume matrimonial cohabitation and to render the rights and duties of matrimonial life. Before passing a decree, the Court must be satisfied that the respondent has without reasonable excuse withdrawn from the society of the petitioner and there is no legal ground why the decree should not be passed. The legal ground for refusing to grant relief may consist of in any of the grounds on which the respondent could have asked for a decree for judicial separation or for nullity of marriage or for divorce or any conduct on the part of the petitioner or fact tantamount to the petitioner taking advantage of her own wrong or any disability for the purpose of such relief. The two Courts below in the present case have considered the materials on record and have come to the concurrent conclusion that the defendant without reasonable cause has withdrawn from the society of the plaintiff and accordingly granted the relief of restitution. In this view of the matter this Court as a Second Appellate Court is not entitled to interfere with the aforesaid conclusion and finding which is based on a thorough scrutiny of the evidence as well as on proper application of law on the subject. The second contention of Mr. Rath must accordingly be rejected. 9. Both the contentions having failed, and no other contention having been raised, the Second Appeal is devoid of any merit and is accordingly dismissed, but in the circumstances there would be no order as to costs.