1. This is a wife's Second Appeal challenging the validity and property of a decree passed by the learned Assistance Judge, Dhulia, on August 2, 1972, passed in favour of the husband for restitution of conjugal rights. The decree was passed by the learned Assistant Judge, Dhulia who set aside the decree passed by the Civil Judge, Senior Division, Dhulia dismissing the husband's petition under Section 9 on the ground that the husband had failed to prove that wife's withdrawal from his society was without reasonable excuse.
2. The findings of the trial Judge were based on careful appreciation of the oral evidence of the husband and his witness on the one hand and the wife and her witness on the other and also the documents on record produced by both the sides. The learned trial Judge observed:
'It is not disputed that the parties were married in 1963. It appears that they cohabited at Nawapur for about 6 or 7 years. There are three issues out of the marriage. At the time of the birth of the third issue (a daughter) dispute appear to have arisen between the parties. It appears from the evidence that the relations between the father of the petitioner and the father of the respondent became strained and this in turn caused a friction between the petitioner and the respondent. It is also the case of the respondent that the cause of quarrel between the two fathers-in-law was the alleged demand by the petitioner's father for wrist watch, a cycle and ring. The respondent's case is that although her father had not agreed to give these articles or the price thereof to the petitioner or his father, the latter made this an issue and persisted in demanding the same time and again from the respondent's father. When the persistent demands were not fulfilled by the respondent's father, the petitioner's father started illtreating the respondent and that is how the controversy arose. It is not disputed that the father of the respondent commenced proceedings under Section 100 Criminal Procedure Code and got the respondent removed from the house of the petitioner under a search warrant. It is now established that when the respondent was produced before the Magistrate concerned, she made a statement that she would opt to go to her father, i. e. to reside with him and not with the petitioner; at that time she alleged that the petitioner was treating her with cruelty and she became apprehensive as to her personal safety and security at his hands, if she returned to him.'
Since then she has been residing with her father.
2.A. It is also undisputed that a criminal case was filed by the petitioner against the respondents' father and another; and that case was ultimately compounded. The wife had commenced proceedings for the custody of her eldest son who was not allowed to accompany her when she went to her father's place. before she went to her father's place that son was taken to the petitioner's brother at a different place. The custody proceedings ended against the wife. The other two children are with the wife.
3. The learned Civil Judge, therefore, rightly came to the conclusion that the relations between the parties were extremely strained. The learned Civil Judge also relied on the fact that though the husband was asking for restitution of conjugal rights in para. 5 of the petition he averred as follows:-
The learned Judge therefore held that this amounted to doubting the paternity of the third child though the learned Advocate for the husband stated before the learned Civil Judge that he was not pressing that issue and he was pressing only for the return of the respondent i. e., restitution of conjugal rights.
4. The learned Judge fully considered the oral and documentary evidence and found that there was no evidence in respect of the allegation that the respondent was guilty of any adulterous connection in any relevant period; but having regard to the relation between the parties it cannot be said that the wife left the husband without any fault on his side. According to the learned Judge the evidence of the wife showed that she would not have left but for the harsh and cruel attitude of the petitioner and for the attack on her character by the petitioner.
5. The learned Judge observed in para. 6 of his judgment:
'On the last aspect when pressed the learned advocate for the petitioner could not properly explain how the allegations were made originally and as to why they were allowed to be there. In the circumstances, there if no doubt that if restitution is allowed in this case if would be putting a premium on the fault of the petitioner himself and it would be allowing the petitioner to take advantage of this own wrong towards the respondent. there was an officer on the side of the petitioner to take back the respondent even with the last child, but he did not appear to be frank enough to own its paternity; but offer was a sort of patronising and as if condoning the alleged marital fault of the respondent.'
The learned Civil Judge, therefore, dismissed the petition filed by the petitioner on February 25, 1971.
6. Before the learned Assistant Judge, the Advocate appearing for the husband, who had carried the appeal against the dismissal, appears to have made a statement that there was no satisfactory evidence on record to show that the wife had reasonable excuse to withdraw from the society of the husband and the learned trial Judge had unnecessarily made much of the averment that the wife was not carrying when she left the residence of the husband and that he was unnecessarily prejudiced because of the said averment in the petition. The learned Advocate argued before the learned Assistant Judge that the husband had withdrawn the said averment made in the petition. The learned Assistant Judge therefore, ignored the allegation of unchastity made against the wife and reversed the findings recorded by the learned trial Judge believing the husband and disbelieving the wife.
7. Mrs. Shenoi, the learned counsel appearing for the appellant challenged the findings recorded by the learned Assistant Judge firstly on the ground that it was not open to the respondent to make allegations and then withdraw such allegations of unchastity in the manner in which the learned Assistant Judge appears to have permitted.
8. Secondly, she urged that the very allegation of unchastity was sufficient to amount to cruelty and reasonable excuse within the meaning of Section 9 of the Hindu Marriage Act. In support of this proposition, she relied on a decision of a Division Bench of the Kerala High Court in Sarah Abraham v. Pyli Abraham AIR 1959 Ker 75, in which it was laid sown that imputation of unchastity to disentitle a husband of marital right must be persisted in by the husband and then the fact in certain circumstances will certainly entitle the wife to resist a petition for restitution of conjugal rights filed by the husband.
9. Mrs. Shenoi also relied on a decision of single Judge of the Punjab High Court in Iqbal Kaur v. Pritam Singh, wherein it was laid down that when the wife is stated by the husband to be living the life of a prostitute and in the environments of immorality without any proof of these allegations, she can legitimately ask the Court to give a finding that she has a reasonable apprehension in her mind about the harmful or injurious effect of living in the matrimonial home. In such a case, the wife is treated with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious for her to live with the other party.
10. Thirdly, Mrs. Shenoi submitted that the learned Assistant Judge erred in law in recording a vague finding with regard to Section 23 of the Hindu Marriage Act without applying his mind to the facts and circumstances, which clearly showed that the petitioner-husband was taking advantage of his own wrong in filing the petition for restitution of conjugal rights without any desire for restitution of conjugal rights and with an ulterior motive of obtaining subsequent divorce on the basis of the decree for restitution of conjugal rights.
11. Mr. Kotwal, who was filed Vakalatnama has not cared to appear for the husband. The appeal is, therefore, heard ex parte against the respondent-husband. On considering the two judgments. I find that the learned Assistant Judge failed to bear in mind the important principles laid down from time to time by Privy Council and the Supreme Court regarding the limitation and restrictions which should not be ignored by a Court of appeal in matters of appreciation of evidence and credibility of the witnesses.
12. It is well settled that the opinion of the trial Judge should not be lightly disturbed in appeal. It requires circumstances of exceptional character to justify a reversal. A trial Judge sees, hears and questions witnesses and a finding of fact arrived at by him on oral testimony should not be disturbed except in rare cases where some error susceptible of being dealt with wholly by argument is disclosed, such as omission to take account of circumstances or probabilities material to an estimate of the evidence or giving credence to testimony which turns out on more careful analysis to be substantially inconsistent with itself or with indisputable fact. See Narbada Prasad v. Chhaganlal, : 1SCR499 ; and Sarkar on Evidence, 12 Edition, pp. 52 to 53.
13. In the present case, I find that the learned trial Judge had taken into consideration not only the testimony of the husband and the wife but also the facts and circumstances which clearly showed that it was the husband who was ill-treating the wife. As the relation between the two parties were strained on account of the strained relations between the respective fathers-in-law, the learned trial Judge found that the letters written by the husband to the wife were heinous. He referred to the allegations of unchastity made by the respondent and the general conduct of the husband in not paying any allowance after she was removed to father's house under Section 100 of the old Criminal Procedure Code. He also referred to the fact that one of the three children was detained by the husband and was not allowed to join the mother.
14. It is true that the learned trial Judge has not discussed at length the evidence of the wife and the husband and the witnesses. But the learned trial Judge has relied on the general conduct as evidenced from the letters and from the heavier of the husband towards the wife and the allegations made in the petition and particularly the allegation against the chastity of the wife. He rightly held that those allegations amounted to cruelty and justified the wife in withdrawing herself from the society of the husband.
15. Before passing a decree for restitution 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 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, any conduct on the part of the petitioner or fact tantamount to the petitioner taking advantage of his or her own wrong or any disability for the purpose of such relief; collusion with the respondent; and unnecessary or improper delay in instituting the proceeding. it is clear from Section 9(1) that no relief can be granted to the husband if the wife had reasonable excuse or what is often spoken of in this context as just cause for withdrawing from the society of the husband. What would be reasonable excuse will depend on the facts of each case. The reason must be grave and convincing.
16. The cases cited by Mrs. Shenoi, in support of her argument that allegation of unchastity by the husband would amount to such reasonable excuse are, in my opinion, in respect, rightly decided. There can be no more insulting injury to the wife than her won husband doubting her chastity. It must be held that if those allegations are lightly made and persisted in filing the petition, the husband is not entitled to any relief under Section 9 of the Hindu Marriage Act. It may be that the learned Assistant Judge found it difficult due to absence of material evidence to believe her when she said that she was kicked, confined or starved by the husband which made her father to remove her from the custody of the husband and wife. the husband has not tried to send any amount either to his wife for that period or to his two children who were with her. The learned Assistant Judge, in my view, was not right in reversing the findings recorded by the trial Judge in the present case ignoring these cruelties inflicted by the husband.
17. It was clear from the facts and circumstances that the wife was compelled by the conduct of the husband to leave him and the husband persisted in making allegation of unchastity even when filing the petition in the trial Court. Hence the relief of restitution of conjugal right ought not to have been granted under Section 23(1)(a) as he was trying to secure relief under Section 9 for ulterior purpose taking advantage of his own wrong towards the wife. I, therefore, uphold all the grounds urged by Mrs. Shenoi in support of the appeal. I find that the judgment and decree passed by the learned Assistant Judge are contrary to law and must be set aside; and the judgment and decree passed by the learned Civil Judge must be restored.
18. Mr. Shenoi further submitted that under Section 25 of the Hindu Marriage Act any court exercising jurisdiction under this Act may at the time of passing any decree or at any time subsequent thereto on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall, while the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent's own income and other property, if any, the income and other property of the applicant and the conduct of the parties, it may seem to the court to be just.
19. Mrs. Shenoi had drawn my attention to para. 7 of the judgment of the trial Judge where the learned trial Judge held that having regard to the fact that the husband was a teacher in a primary school, he had no ample resources to maintain the wife though the wife was not earning and was being maintained by her father but the primary liability to maintain her was on the husband. The learned trial Judge, therefore, fixed only interim maintenance at the rate of Rupees 35/- per month. Strangely, however, the learned Civil Judge did not pass in the operative part of the order any order with regard to the maintenance.
20 Mrs. Shenoi submitted that the husband has not paid anything to the wife till now. In the facts and circumstances of the case, notwithstanding that the wife has not filed any appeal against the order passed by the Civil Judge, I think that this court has power to pass think that this court has power to pass a just and proper order under Section 25(1) of the Hindu Marriage Act awarding maintenance to the wife from the date of her removal under Section 100 of the Code of Criminal Procedure at the rate of Rs. 35/- per month as fixed by the learned Civil Judge as interim maintenance, without prejudice to the rights of the wife to ask for enhanced maintenance, without prejudice to the rights of the wife to ask for enhanced maintenance under Section 25(2) before the Civil Judge competent to hear such petition.
21. In the result, the second appeal is allowed. The judgment and decree passed by the learned Assistant Judge on August 2, 1972, are set aside. The husband's petition for restitution of conjugal rights is dismissed and a decree is passed against the husband ordering him to pay maintenance at the rate of Rs. 35/- per month from August 11, 1969, when she was removed from her husband under a warrant under Section 100 of the old Criminal Procedure Code, for her life to the wife without prejudice to her rights to claim enhanced maintenance for herself and for maintenance of her children in the court of Civil Judge competent to exercise powers under Section 25 of the Hindu Marriage Act or under any other law. The husband to pay the costs of the wife in all three courts.
22. Appeal allowed.