A.M. AHMADI

(1) The parties to this Second Appeal were married in village Sander District Mehsana according to Hindu riles some time in the year 1961. The husband contends that they last resided together in Bhavnagar in the month of December 1970 and thereafter his wife deserted him and refused to resume cohabitation. On this ground he filed a petition No. 39/71 in the court of the learned Civil Judge Senior Division Bhavnagar under sec. 9 of the Hindu Marriage Act 1955 hereinafter called the Act for restitution of conjugal rights. The respondent wife though served with the summons of the said petition did not enter appearance and allowed it to be disposed of ex parte. The learned Judge framed issues at ex. 6 and came to the conclusion that the respondent wife had without reasonable excuse withdrawn from the society of the husband. He therefore granted a decree for restitution of conjugal rights under sec. 9 of the Act on 23rd August 1971 The certified copy of the judgment in the said petition is at ex. 29. After the said decree was passed in favour of the husband the respondent wife was served with a a notice dated 1st February 1971 informing her of the decree for restitution of conjugal rights in his favour and calling upon her to resume conhabitation and fulfil her marital obligations. The respondent wife did not answer this notice nor did she return to the house of her husband in compliance with the decree passed in his favour. On the expiry of the statutory period the husband therefore filed a petition No. 36/73 in the court of the learned Civil Judge Senior Division Bhavnagar claiming divorce under clause (ix) of sub-sec. (1) of sec. 13 of the Act. The respondent wife entered appearance and resisted the petition for divorce by her written statement Ex. 10. The learned trial Judge framed appropriate issues at Ex. 12. and came to the conclusion that the respondent wife had not complied with the decree for restitution of conjugal rights. The question of jurisdiction of the court was specifically raised in the written statement and the learned trial Judge raised an issue in this behalf and held that in view of the previous decree for restitution of conjugal rights having been passed by the Bhavnagar court it was not open to the respondent wife to reiterate the question of territorial jurisdiction of the court in the subsequent petition and accordingly granted a decree for divorce on 18th February 1975

(2) The respondent wife preferred an appeal No. 41/75 in the court of the learned District Judge Bhavnagar challenging the decree for divorce granted by the trial court. The main contention which was urged before the learned District Judge was regarding the territorial jurisdiction of the Bhavnagar court to try and dispose of the petition for divorce. The learned District Judge came to the conclusion that the evidence on record disclosed that the parties did not last reside together at Bhavnagar as contended by the petitioner and hence the Bhavnagar court had no jurisdiction to entertain try and dispose of the divorce petition. He also came to the conclusion that the decree for restitution of conjugal rights was a nullity inasmuch as the Bhavnagar court had no jurisdiction to entertain any petition under the Act between the parties as they did not last reside together in Bhavnagar. In that view that he took he allowed the appeal and dismissed the husbands petition for divorce. It is against this order passed by the learned District Judge that the petitioner husband has preferred this Second Appeal.

(3) The first question which this court must answer is whether the Bhavnagar court had jurisdiction to entertain try and dispose of the divorce petition of the husband founded on the earlier decree for restitution of conjugal rights granted in his favour by the Bhavnagar court in petition No. 39/71. Sec. 19 of the Act as it then stood reads as under: Every petition under this Act shall be presented to the District Court within the local limits of whose ordinary original civil jurisdiction the marriage was solemnized or the husband and wife reside or last resided together. The submission made on behalf of the wife before the learned trial Judge was that the decree for restitution of conjugal rights obtained by the husband was a nullity inasmuch as the Bhavnagar court had no jurisdiction to entertain the said petition. This objection it may be clarified related to the territorial jurisdiction of the Bhavnagar court in that according to the respondent wife she and her husband did not last reside together in Bhavnagar as alleged by the latter. The trial court rejected this contention on two grounds namely (i) such a contention is not open in collateral proceedings as the court is not entitled to go beyond the decree made in the earlier petition unless it is set aside in a subsequent suit brought for that purpose; and (ii) even on the evidence on record it was obvious that the couple last resided together in Bhavnagar. In appeal the learned District Judge held on merits that the brief or temporary visit of the wife to Bhavnagar around January 1971 did not amount to she having last resided with her husband and hence the couple could not be said to have last resided together in Bhavnagar within the meaning of sec. 19 of the Act. In that view that the learned District Judge took he not only allowed the appeal dismissing the petition for divorce but took the additional step of holding that the decree for restitution of conjugal rights obtained by the husband was a nullity as the Bhavnagar court had no jurisdiction to grant such a decree. This view of the learned District Judge is seriously challenged before me by Mr. Shah the learned advocate for the petitioner husband.

(4) Sec. 9 of the Act provides that 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. By virtue of sec. 19 of the Act the petition must be presented to the District Court within the local limits of whose ordinary original civil jurisdiction the marriage was solemnized or the husband and wife reside or last resided together. The petition for restitution of conjugal rights was founded on the allegation that the husband and wife last resided together at Bhavnagar after the respondent wife came to Bhavnagar in December 1990 It was urged that the parties lived together in Bhavnagar for about 2 months and thereafter the respondent wife went to Sander on 29th January 1971 on receipt of a letter from her brother. She did not return to Bhavnagar to resume cohabitation even though she was served with a notice by registered post on 21st June 1971 in that behalf. The husband therefore initiated proceedings against the wife under sec. 9 of the Act in the Bhavnagar court and succeeded in obtaining an ex parte decree for restitution of conjugal rights on 23rd August 1971 This becomes clear if we refer to the averments set out in the judgment ex. 29 of the court which awarded a decree for restitution of conjugal rights to the husband. It is indeed true that no specific issue was raised by the learned Judge on the question whether the Bhavnagar court had jurisdiction to try the petition for restitution of 4 9 conjugal rights but it is obvious from the above averments that the husband approached the court with the allegation that the parties last resided together in Bhavnagar and therefore the court had jurisdiction to pass a decree in his favour. Now the question whether the parties last resided together in Bhavnagar is a question of fact. The question of jurisdiction of the Bhavnagar court is solely dependent on the answer that the court may give on this question of fact. This is not a case in which the courts jurisdiction to pass a decree for restitution of Sonjugal rights is challenged on the ground of want of inherent jurisdiction. Mr. Shah therefore submitted that the petition for restitution of conjugal rights filed by the husband concluded on the court having granted a decree in his favour on the finding that the parties last resided together in Bhavnagar. I must be conceded that no specific issue in this behalf was raised by the court hearing the petition under sec. 9 of the Act but contended Mr. Shah the question must be deemed to have been concluded in favour of the husband for if it was not so the court could not have granted a decree for restitution of conjugal rights. Mr. Shah therefore submitted that the learned District Judge was not entitled to upset the decree for restitution of conjugal rights in an appeal arising out of a petition sub sequently filed for divorce by coming to the conclusion on the evidence placed in the divorce petition that the Bhavnagar court had no jurisdiction to entertain such a petition. The next limb of the submission was that once the question regarding the territorial jurisdiction of the court was decided in favour of the existence of jurisdiction the rule of constructive res judicata contained in Explanation IV of sec. 11 of the Code of Civil Procedure would debar the court trying the subsequent petition for divorce to reach an opposite conclusion and hold that the Bhavnagar court has no jurisdiction. There is considerable merit in the submissions made before me by Mr. Shah.

(5) As pointed out in the foregoing paragraphs of this judgment the petition for restitution of conjugal rights was filed in the Bhavnagar court by the husband on the allegation that the couple last resided together in Bhavnagar in December 1970 for about two months. The learned trial Judge who disposed of the petition for restitution of conjugal rights did not raise any specific issue in this behalf but he passed a decree in favour of the husband. By necessary implication therefore the learned trial Judge accepted the evidence of the husband in this behalf and thought that the Bhavnagar court had jurisdiction and granted a decree for restitution of conjugal rights in favour of the husband. It must be remembered that the respondent wife did not contest that petition and allowed it to be decided ex part. Under sec. 19 of the Act the court was competent to grant a decree to the husband accepting his allegation that the couple last resided together in Bhavnagar. Sec. 21 C.P.C. pro vides that no objection as to the place of suing shall be allowed by any appellate or revisional court unless such objection was taken in the court of first instance at the earliest possible opportunity and in all cases issues are settled at or before such settlement and unless there has been a consequent failure of justice. In order that an appellate or revisional court may interfere with the findings on the question of territorial jurisdiction this section requires two conditions to be satisfied; namely (i) that the objection as to jurisdiction was taken in court of first instance at the earliest possible opportunity and before the issues were settled; and (ii) there has been a consequential failure of justice. Therefore even if the question of territorial jurisdiction is raised at the earliest point of time in the court of first instance and in every case before the issues are settled the appellate or revisional court would not be justified in interfering with the finding in favour of existence of jurisdiction unless it is further shown that the same has resulted in failure of justice. In the instant case Mr. Shah rightly pointed out that the respondent wife did not contest the petition for restitution of conjugal rights. He further pointed out that there is nothing on record to show that according to the respondent wife the finding of the court in favour of existence of jurisdiction has resulted in failure of justice. A vain attempt was made by Mr. Vyas to urge that she did not defend the petition as it was filed in the Bhavnagar court because the expense would have been prohibitive. The respondent wife has not uttered a word in this behalf even if it is assumed for the sake of argument that such a contention is open to her in the subsequent petition filed by the husband for divorce. It therefore becomes clear that in view of sec. 21 C.P.C. even the appellate or revisional court could not have set aside the decree for restitution of conjugal rights on the ground that the Bhavnagar court had no jurisdiction unless the aforesaid two conditions were satisfied. Much less therefore in a subsequent petition for divorce founded on the decree for restitution of conjugal rights granted to the earlier proceedings could the court go into the question of territorial jurisdiction and hold that the decree for restitution of conjugal rights is a nullity as the parties did not in fact last reside together in Bhavnagar. The decision of the learned District Judge holding that the decree for restitution of conjugal rights is a nullity proceeds on the ignorance of the provisions of sec. 21 C.P.C.

(6) A reference to Hira Lal Patni v. Sri Kali Nath A.I.R. 1962 S.C. 199 will make it clear that it is settled law that objection as to legal jurisdiction of a court stands on a different footing from an objection as to the competence of the court to try a case. Competence of a court to try a case goes to the very root of jurisdiction and where it is lacking it is a case of inherent lack of jurisdiction. But an objection as to the legal jurisdiction of a court can be waived and this principle has received statutory recognition in sec. 21 C.P.C. In paragraph 4 of the judgment Their Lordships have made it clear that the validity of a decree can be challenged in execution proceedings only on the ground that the court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have season of the case because the subject matter was wholly foreign to its jurisdiction. These observations lend support to the argument that a decree passed in earlier proceedings cannot be struck down as a nullity in collateral proceedings on the ground that the court which passed the decree was lacking in legal jurisdiction.

(7) It is true that in the earlier petition the question whether the Bhavnagar court had jurisdiction to decide the petition for restitution of conjugal rights was not specifically raised by the trial court. It is however clear from the facts set out in the judgment that the petitioner went to court on the allegation that the parties to the petition last resided together in Bhavnagar within the meaning of sec. 19 of the Act. Sec. 11 C. P. C. provides that no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such court. Reliance was placed on Explanation IV to this section which reads as under:

IV. Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Mr. Shah argued relying on the language of this Explanation that the question regarding the territorial jurisdiction of the Bhavnagar court was a matter in issue in the former suit and the respondent wife ought to have made it a ground of defence if according to her the parties had not last resided together in Bhavnagar within the meaning of sec. 19 of the Act. If the respondent wife chooses to remain absent on the service of the summons of the institution of the proceedings and allows the matter to be decided ex parte it must be held that she failed to raise the ground of defence which she ought to have raised to defeat the petition for restitution of conjugal rights. If she fails to contest the husbands allegation that the parties last resided together in Bhavnagar even though the issue may not have been specifically raised by the court the matter must be deemed to have been directly and substantially in issue in the former suit in view of the above Explanation. Explanation IV therefore introduces the principle of constructive res judicata and provides that if any matter which might or ought to have been made a ground of defence in the former suit between the same parties is not set up the matter shall be deemed to have been directly and substantially in issue in such a suit. In my opinion on the principle of constructive res judicata an objection to the territorial jurisdiction of the court in the previous suit which might or ought to have been raised therein must be deemed to have been heard and decided in favour of the existence of jurisdiction and the party which chooses not to raise the issue in defence is precluded from raising it in a subsequent petition between the same parties. It is unnecessary to refer to a plethora of cases on this point but it will be sufficient to reproduce the observations of Fawcett J. in Rajaram Tukaram v. Central Bank of India Ltd. A. I. R. 1926 Bombay 481. In the second column on page 486 says the learned Judge: The decisions in question will be found cited in Mullas Commentary on the Civil P. C. 7 Edn. p. 39. In addition to the Bombay cases there cited. I may refer to Chhaganlal v. Bai Karkha (11 B.L.R. 345) and Baishanker Nanabhai v. Morarji Keshavji and Co (13 B.L.R. 950) which are supported by the Privy Council decision in Raja of Ramnad v. Velusami Tevar (48 I.A. 45) of my remarks in Gadigappa v. Shidappa (I.L.R. 1948 Bom. 638) at p. 652. These decisions all go upon the view that where a matter has been constructively in issue so as to bring it under Exp. 4 to sec. 11 it could not from the very nature of the case be heard and decided. and it will be deemed to be heard and decided against the party who might and. Ought to have alleged it. These observations clearly support the view that I take.

(8) Mr. Vyas the learned advocate for the respondent wife tried to explain away this view by saying that it can apply to only those cases where it is necessary for the defendant to defend the action but not otherwise. His submission was that the wife was always ready and willing to resume cohabitation but it was the conduct of the husband which made it difficult for her to go and live with him He therefore submitted that the wife had no objection to a decree for restitution of conjugal rights being awarded to the husband as she herself was ready and willing to resume cohabitation. It was therefore not necessary for the respondent wife to defeat the action for restitution of conjugal rights commenced by her husband and hence argued Mr. Vyas it was not necessary for her to enter appearance and resist the petition on the ground that the Bhavnagar court had no jurisdiction to deal with the matter. There is not merit in this submission for the obvious reason that under sub-sec. (1A) of sec. 13 of the Act on the expiry of the statutory period either party to the marriage was entitled to claim divorce on the ground that there had been no restitution of conjugal rights after the passing of the decree. If the wife wanted to avoid the consequence set out in sub-sec. (1A) of sec. 13 of the Act it was necessary for her to defend the petition brought by the husband for restitution of conjugal rights. I am therefore not impressed by the submission of Mr. Vyas that it was absolutely unnecessary for the respondent-wife to defend the action commenced by her husband and therefore Explanation IV to sec. 11 C.P.C. can have no application.

(9) Mr. Vyas next submitted that the petitioner husband after securing a decree for restitution of conjugal rights did not evince any desire to receive his wife back even though the latter was keen to reunite. He pointed out that the essence of a decree for restitution of conjugal rights is that the husband desiring the company of the wife must make an effort to recall his wife so that they may be able to lead con- jugal life. His submission was that the significant feature of a petition for restitution of conjugal rights is that it is a remedy in the direction of preserving the marriage rather than dissolving it and hence it is necessary for the husband to show that after securing a decree for restitution of conjugal rights he made sincere efforts to recall his wife but restitution of conju gal rights was not possible because of the attitude adopted by his wife. Mr. Vyas invited my attention to the letters exhs. 30 to 33 and 60 as well as the document ex. 56 which shows that she resigned her job with effect from 21st July 1972 in support of his submission that the respondent wife was ever desirous of returning to the fold of her husband and had in fact with that view in mind gone to Malund the residence of her father in law as her husband had no fixed place of abode in Bhavnagar where be was still studying. By taking me through this documentary evidence as well as the oral testimony of the respondent wife Mr. Vyas attempted to impress upon me that the decree for restitution of conjugal rights could not be made effective not because of the attitude adopted by the wife but because the husband was not sincere and had evinced no desire whatsoever to restart life with his wife. This submission of Mr. Vyas was repelled by Mr. Shah firstly on the ground that under sec. 9 of the Act a decree for restitution of conjugal rights could only be passed in favour of the husband on proof that the wife had withdrawn from his society without reasonable excuse. He next submitted that a decree for divorce cannot be refused on the ground that the husband was trying to take advantage of his own wrong unless it is established that he is guilty of misconduct serious enough to justify denial of the relief to which he is otherwise entitled. A mere disinclination to agree to an offer of reunion will not be enough to defeat the husbands claim for a decree of divorce on the ground that the decree for restitution of conjugal rights had not been complied with. It was pointed out by Mr. Shah that these are pure questions of fact and this court in Second Appeal would not be entitled to review the evidence to come to a conclusion different from the concurrent findings of fact recorded in this behalf by both the courts below. I think there is considerable force in the submission of Mr. Shah. The trial court while dealing with this aspect of the matter observed as under:

If we keep the above dates before our eyes then it will be apparent that the whole story put up by the opponent about having stayed with the petitioner at Malund is nothing but a concoction. It is very clear that from 1-7-72 upto 31-12-72 the petitioner had never stayed at Malund even for some days and for this reason it cannot be believed that the opponent had stayed with him in the month of May and July at Malund. After referring to the letters to which my attention was drawn by Mr. Vyas the learned trial Judge concluded I refuse to believe the opponent that after she received the letter ex. 31 she had gone to stay with the petitioner at Malund. The learned trial Judge had raised a specific issue on the point whether the petitioner was taking advantage of his own wrong or disability and had answered it in the negative. This finding of fact was seriously challenged in appeal before the learned District Judge. The learned District Judge considered the oral as well as the documentary evidence in this behalf and refused to believe the wifes contention that she had gone to Malund to resume cohabitation with her husband. The learned District Judge in terms agreed with the view taken by the learned trial Judge on the appreciation of evidence and observed as under: Therefore the learned Judge was right in not believing her and was right in coming to the conclusion that appellant did not comply with the decree of restitution of conjugal rights passed in H. M. P. 39/71. It will thus appear from the observations of the two Courts below that both the Courts have come to the conclusion that it was the wife who had failed to comply with the decree for restitution of conjugal rights. This is a finding of fact and it is not open to me in Second Appeal to review the evidence and come to a different conclusion as urged by Mr. Vyas.

(10) The last submission made by Mr. Vyas raises an interesting and neat question of law bearing on the interpretation of sub-sec. (1) of sec. 23 of the Act. Under sec. 9 of the Act either party is entitled to a decree for restitution of conjugal rights if his or her spouse has withdrawn from his or her society without reasonable excuse provided there is no legal ground why the application should not be granted. Sec. 23(1) of the Act next provides as under: 23 (1) In any proceeding under this Act whether defended or not if the court is satisfied that :

(i) any of the grounds for granting relief exists and the petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief and (b) where the ground of the petition is the ground specified in clause (f) of sub- sec. (1) of sec. 10 or in clause (i) of sub-sec. (1) of sec. 13 the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty and (c) the petition is not presented or prosecuted he colluson with the respondent and (d) there has not been any unnecessary or improper delay in instituting the proceeding and (c) there is no other legal ground why relief should not be granted then and in such a case but not otherwise the court shall decree such relief accordingly.

Sub-sec. (2) of sec. 23 with which we are not concerned in this Appeal enjoins upon the court to make every endeavour to bring about a reconciliation between the parties before proceeding to grant any relief under the Act. On a conjoint reading of secs. 9 and 23(1) of the Act it becomes obvious that if the petitioner is found taking advantage of his own wrong or disability or if the petition is presented or prosecuted in collusion with the opposite party or there has been an unnecessary or improper delay in instituting the proceedings or there is any other legal impediment the court would be justified in refusing to pass a decree in favour of the petitioner. Sub-sec. (1) of sec. 23 circumscribes the jurisdiction of the court trying matrimonial causes under the Act. It imposes an obligation or duty on the court to satisfy itself that the petition does not suffer from any of the impediments set out in clauses (a) to (e) of that sub-section. This becomes clear from the words if the court is satisfied employed in the opening lines of the sub-section. This is a mandatory duty or obligation cast by the statute on the court whether or not the petition is defended. The concluding words in such a case but not otherwise during indicate that the sub-section is mandatory in nature and if the court fails to record its satisfaction in respect of the matters set out in cl. (a) to cl. (e) of sub-sec. (1) of sec. 23 the decree would be a nullity. In other words the jurisdiction of the court to grant a relief under the Act depends on its satisfaction that none of the impediments in clauses (a) to (e) of the sub-section exist to deny the relief sought by the petitioner. It is clear from the facts of the present case that the court which granted a decree for restitution of conjugal rights had failed to apply its mind and perform the mandatory duty cast on it by sub-sec. (1) of sec. 23 of the Act. Mr. Vyas drawing inspiration from the Supreme Court decisions in Rent Control Legislations argued that the failure on the part of the court which granted the decree for restitution of conjugal rights to apply its mind to matters set out in clauses (a) to (e) of sub-sec. (1) of sec. 23 of the Act renders the decree for restitution of conjugal rights a nullity and the prayer for divorce which is solely based on the non-performance of that decree must therefore be rejected. I think Mr. Vyas is on firmer grounds so far as this contention is concerned.

(11) In Ferozi Lal Jain v. Man Mal and Another A. I. R. 1970 S. C. 794 the court was dealing with a decree passed on the basis of a compromise between the parties disregarding the requirement of sec. 13(1) of the Delhi and Ajmer Rent Control Act 1952 That section lent protection to a tenant against eviction. It provided that notwithstanding anything to the contrary contained in any other law or any contract no decree or order for the recovery of possession of any premises shall be passed by any court in favour of the landlord against any tenant (including a tenant whose tenancy is terminated) unless the court is satisfied that the tenant had without the written consent of the landlord sub-let assigned or otherwise parted with the possession of the whole or any part of the premises. It is clear from the plain language of the above provision that a decree for possession could be passed by the court only if it was satisfied that one or more of the grounds mentioned in sec. 13(1) was established The Supreme Court pointed out that without such satisfaction the court is incompetent to pass a decree for possession. In other words say Their Lordships the jurisdiction of the court to pass a decree for recovery of possession of any premises depends upon its satisfaction that one or more of the grounds mentioned in sec. 13(1) exist. Then come the relevant observations on which Mr. Vyas placed considerable reliance: They are as under:

It is clear from the record that the court had proceeded solely on the basis of the compromise arrived at between the parties. That being so there can be hardly any doubt that the court was not competent to pass the impugned decree. Hence the decree under execution must be held to be a nullity. The Division Bench of this High Court in Shah Rasiklal Chunilal v. Sindhi Shyamlal Mulchand 12 G.L R. 1012 after a review of the case law in this behalf observed that even though a fetter is created by the Legislature that a court under the Rent Act shall not pass an eviction decree unless one or the other of the grounds specified exists and the court is satisfied about the same the jurisdiction of the court is held to operate in a wider area because of the terms of sec. 28 of the Bombay Rent Hotel and Lodging House Rates (Control) Act 1947 which entitles the court to determine conclusively whether or not such a ground for eviction exists. It was pointed out that the satisfaction of the court as to the existence of the relevant ground for eviction which is a condition for the further exercise of jurisdiction of the court to pass a decree for eviction is a question in issue which is left to the Rent Court to decide. If the tenant Court while deciding this issue reaches a wrong conclusion it cannot be said that it has clutched at jurisdiction which it did not have. In that case the Rent Court would be deciding a question of law within its jurisdiction and if the decision is wrong it can be corrected in appeal. Therefore even when the court wrongly holds that it was satisfied as to the existence of the relevant ground it could not be said to be committing an error pertaining to its jurisdiction. It is only when the court passes a forbidden decree by going outside the ambit of jurisdiction i.e. passes a decree de hors or ultra vires the Rent Act that the decree can be attacked on the ground of lack of inherent jurisdiction. In other words if there is foundation for the exercise of jurisdiction of the Rent Court the eviction decree could not be treated as a nullity merely on the ground that the satisfaction of the Court was wrongly reached. Therefore even if the court passes a decree on the basis of the compromise arrived at between the parties without in terms recording its satisfaction in its order or because it was wrongly satisfied as to the existence of the relevant ground for eviction the decree cannot be set at naught as a nullity if it is found that there was foundation for the exercise of jurisdiction i.e. there was material on record which would justify the Rent Court in invoking its jurisdiction. This view of the Gujarat High Court was affirmed by the Supreme Court in Nagindas Ramdas v. Dalpatram Iccharam alias Brijram and Others A.I.R. 1974 S.C. 471. The principle emerging from a conspectus of the case law was stated in the following words in paragraph 26 of the judgment: ...the principle that emerges is that if at the time of the passing of the decree there was some material before the court on the basis of which the court could be prima facie satisfied about the existence of a statutory ground for eviction it will be presumed that the court was so satisfied and the decree for eviction apparently passed on the basis of a compromise would be valid. Such material may take the shape either of evidence recorded or produced in the case or it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement itself.

Again in para 29 of the judgment the following relevant observations were made:

If on the face of it the decree does not show the existence of such material or jurisdictional fact the Executing court may look to the original record of the trial court to ascertain whether there was any material furnishing a foundation for the trial courts jurisdiction to pass the decree it did. The moment it finds that prima facie such material existed its task is complete. It is not necessary for it to go further and question the presumed or expressed finding of the trial court on the basis of that material. All that it has to see is whether there was some material on the basis of which the Rent Court could haveas distinguished from must have been satisfied as to the statutory ground for eviction.

(12) Two more decisions one of the Allahabad High Court and the other of the Orissa High Court directly bearing on the question of interpretation of sec. 23(1) of the Act were pressed in service by Mr. Vyas. In Smt. Hirakali v. Dr. Ram Asrey Awasthi A.I.R. 1971 All. 201 [LQ/AllHC/1970/239] the court was dealing with a petition for dissolution of marriage based on a consent decree for judicial separation under sec. 10 of the Act. After stating the distinction between a decree passed without jurisdiction and a decree passed in the wrong exercise of jurisdiction the court observed as under on page 203 after reproducing sec. 23 of the Act:

The concluding words of sub-sec. (1) of sec. 23 namely in such a case but not otherwise mean that the provisions of the sub-section are mandatory and the COUrt will be incompetent to grant a decree if the conditions in sub-clauses (a) (b) (c) (d) and (e) mentioned in the sub-section which are cumulative are not fulfilled. The initial words of the section namely if the court is satisfied indicate that decrees for judicial separation or dissolution of manage are passed only upon strict proof of the said conditions it makes no difference whether the proceeding is defended or undefended. The court then proceeded to observe in para 9 of the judgment that the provisions of sec. 23(1) are mandatory and non-compliance thereof deprives the court of its jurisdiction to grant a decree for judicial separa- tion or dissolution of the marriage. The court then considered the merits of the case and came to the conclusion that none of the grounds on the basis of which a decree for judicial separation could be asked were proved and therefore the decree was one without jurisdiction and a nullity. The Orissa High Court in Anupama Misra v. Bhagaban Misra A.I.R. 1972 Orissa 163 also came to the conclusion that the provisions of sec. 23 were mandatory in nature and impose vital conditions on the power and duty of court in the matter of granting any relief under the Act. It was pointed out that before any relief could be granted under the Act the court must examine all the relevant facts whether the petition is defended or not before granting the relief. While doing so the court must apply its mind to sec. 23(1) of the act and must be satisfied with regard to the matters in clauses (a) to (e) of that sub-section before passing a decree claimed in the petition. While referring to the decision of the Supreme Court in c wherein the Supreme Court observed that a court has to pass a decree in the proceedings only when it is satisfied about certain matters specified in sec. 23 the court observed as under; It has been judicially held that sub-sec (1) of sec. 23 of the Hindu Marriage Act is mandatory. That is also clear from the concluding words of sub-sec. (1) viz. in such a case but not otherwise. It will be incompetent for a court to grant any relief under the Act if the conditions under clauses (a) to (e) of sub-sec. (1) of this section are fulfilled. This is clear from the opening part of sub-sec. (1) of this section if the court is satisfied. The court must reach its satisfaction about the matters specified in sec. 23 irrespective of whether a spouse proceeded against under this Act is defended or not After making the above observations the learned Judge proceeded to observe that if a decree for any of the reliefs claimed under the Act is passed without the court being satisfied as to the matters specified in sec. 23 it amounts to passing of the same in illegal exercise of its jurisdiction and is ineffective in law.

(13) It will appear from the above case taw that if a decree is passed by a court in ignorance of the provisions of sec. 23(1) of the Act such a decree would be a nullity and a divorce petition based on such a null and void decree would automatically fail. A decree passed under the provisions of the Act on a wrong decision in regard to the matters specified in clauses (a) to (e) of sec. 23 (1) of the Act would however be a valid decree unless it is set aside in appeal by the competent court. The court which is invested with jurisdiction under sec. 19 of the Act is entitled to decide on the existence or otherwise of the matters specified in sec. 23(1) of the Act and if it reaches a wrong conclusion on the material placed before it such a decree would be erroneous and liable to be set aside in appeal but it will not be a nullity. However if a decree is passed under the provisions of the Act totally disregarding the provisions of sec. 23(1) of the Act such a decree would be one without jurisdiction and therefore null and void. As pointed out by the Supreme Court in Nagindas Ramdas (supra) while affirming the decision of the Gujarat High Court in Shah Rasiklal Chunilal (supra) if the decree on the face of it does not show the existence of jurisdictional material or fact the question whether there was material or foundation before the court which passed the decree would have to be determined on perusal of the original record of the trial court. In the present case the decree ex. 29 on the face of it does not disclose if before the trial court there was material in regard to the matters specified in sec. 23(1) of the Act. The point that the decree for restitution of conjugal rights was a nullity as it was passed in ignorance of sec. 23(1) of the Act was raised for the first time in this Second Appeal by Mr. Vyas. The petitioner husband therefore had no opportunity to point out from the record of the proceedings of the earlier petition as to the existence of the jurisdictional facts in regard to matters spoken of in sec. 2t(1) of the Act. It is therefore necessary that before finally pronouncing on the question whether the decree for restitution of conjugal rights is a nullity as it ignores the requirements of sec. 23(1) of the Act the petitioner should be given an opportunity to bring on record the relevant material from the earlier proceedings to satisfy the court as to the existence of jurisdictional facts in the earlier proceedings. It is therefore necessary to remand this case on this limited point.

(14) In the result the Second Appeal is partly allowed. The diseased of the learned District Judge dismissing the petition for divorce is set aside The case is remanded to the trial court to decide whether the decree for restitution of conjugal rights is a nullity in the light of the above discussion. The trial court will on the decision that it reaches on this question either grant or refuse the decree for divorce sought by the petitioner husband. The parties will bear their own costs throughout.