T.K. Tukol, J.
1. This appeal is directed against the order of the Second Additional District Judge, Bangalore, in H.M. Miscellaneous Case No. 219 of 1958 on an application filed by the respondent for restitution of conjugal rights.
2. The respondent who is the husband of the appellant, filed an application under Section 9 of the Hindu Marriage Act, 1955, alleging that she was refusing to return to his house since the Dasara of 1955, when she left to her parents' house for the holidays. He alleged that his wife had taken jewels worth Rs 1,500/- and had been staying away from him without any sufficient cause, at the instigation of her mother and some others. The appellant resisted this application by her written statement, in which she contended that the petitioner, her husband, was guilty of ill-treatment and had driven her out of his house after wantonly neglecting to maintain her and her daughter. She further alleged that there was danger to the life of herself and her daughter and that the application was mala fide as it was intended to be a counteraction against her suit for maintenance filed in the Court of the Munsiff at Kolar. She further alleged that the petitioner had his first wife living in his house and that she was at the bottom of the whole litigation.
3. The learned District Judge negatived the contentions of cruelty and desertion alleged by the appellant. He also rejected the contention that the appellant was not entitled to resist the claim for restitution of conjugal rights on the ground that he had another wife living with him. The learned Judge was of the opinion that such a plea was intended 'to be used as a weapon of attack and not as a weapon of defence by the wife in a petition by the husband against her for restitution of conjugal rights'. In view of the conclusions reached by him, he passed an order in favour of the respondent directing a decree to be drawn up for restitution of conjugal rights in his favour.
4. Mr. Ranganna the learned Advocate appearing for the appellant has contended that in view of the provisions contained in Section 9(2) of the Hindu Marriage Act, 1955, (Act XXV of 1955), the defence taken up by the appellant that her husband had another wife living was a valid defence and that the learned District Judge had erred in passing a decree against the appellant.
5. The findings of the learned District Judge that the appellant had failed to establish cruelty and desertion without any reasonable cause have not been challenged before us. The only question raised in the appeal is whether the decree for restitution of conjugal rights passed by the learned District Judge was illegal on the ground that it was contrary to the provisions of Section 9 of the Hindu Marriage Act, 1955, if considered in the light of the admitted facts of this case.
6. Section 9 of the Hindu Marriage Act lays down that
'9. (1) 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.
(2) Nothing shall be pleaded in answer to a petition for restitution of conjugal rights which shall not be a ground for judicial separation or for nullity of marriage or for divorce.'
7. The plain meaning of sub-section (1) is that whenever the wife or husband applies for restitution of conjugal rights alleging that the other spouse had withdrawn from his or her society without reasonable excuse and the Court on being satisfied of the truth of the allegations in such petition, may pass a decree in favour of the aggrieved party, unless the application can be rejected on some legal ground. Sub-section (2) specifies what could be a legal defence to such an application. Accordingly to that sub-section, the only defences open to the respondent to an application for restitution of conjugal rights are those which could be valid grounds for judicial separation or for nullity of marriage or for divorce.
8. We have therefore to see whether the contention raised by the appellant, viz., that the applicant had a wife living with him could be a valid defence within the meaning of sub-section (2) of Section 9 of the Act. The learned Advocate for the appellant has placed reliance on Section 13(2)(i) of the Act, which reads as follows:
'13 (2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground.--
(i) in the case of any marriage solemnized before the commencement of this Act that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner;
Provided that in either case the other wife is alive at the time of the presentation of the petition; or x x'.
It was admitted by the parties in their depositions before the District Judge in December, 1959, that the marriage between them took place some 10 or II years prior to that date. This means that the marriage of the appellant and the respondent took place in 1948 or 1949. So, the marriage between the parties had been solemnized before the commencement of the Hindu Marriage Act, 1955, which came into operation on 18th May 1955. Clause (i) mentions two grounds entitling a wife to apply for divorce:- (1) if the marriage between the parties to the petition had been solemnized before the 18th May, 1955, and the husband had married again before the aforesaid date or (2) at the date of the solemnization of the marriage of the petitioner, any other wife of the respondent married prior to the commencement of the Act, was alive. The proviso to this clause lays down that in either case the other wife must be alive at the date when the application is presented.
9. In the case before us, it is common ground that the appellant who is the second wife was married to the respondent prior to the commencement of the Act; it is also common ground that the first wife of the respondent is still alive and has been living with him. On these undisputed facts, it is manifest that the case of the appellant would fall under the second part of this clause, which entitles a wife to apply for a divorce, on the ground that on the date of her marriage the other wife of the husband married to him prior to the commencement of the Act was alive. It is further obvious that this ground which is a valid ground for divorce by a wife can rightly be pleaded in answer to the husband's petition for restitution of conjugal rights as provided by sub-clause (2) of Section 9 of the Act. The learned Advocate for the respondent contended that if such a view was taken the husband was likely to be deprived of the company of both the wives and would be subjected to very great hardship which the Legislature could not be said to have intended to cause. It is true that the provisions of Section 13(2)(i) of the Act are likely to result in hardship to the husband. But the possibility of hardship on a husband cannot be taken into consideration in giving effect to a provision of law which does not present any ambiguity. The words used in Section 13(2)(i) are unambiguous and clear.
10. This view finds support, from a Full Bench decision of the Andhra Pradesh High Court in Thenku Veeriah v. Tamisetti Nagiah, : AIR1959AP547 . The learned Chief Justice who delivered the judgment referred to the provisions of sub-section (2) of Section 9 and to Section 13(2) of the Act and then concluded --
'...... It is, therefore manifest that under this Act a wife could resist a petition for restitution of conjugal rights on the ground that the husband had married another wife before the Act. Whatever might have been the rights of the respondent to claim restitution of conjugal rights before the Act, he ceased to have any after this Act in view of the second marriage, though contracted before the Act. Section 29(3) which saves certain proceedings, does not include in its ambit a proceeding for the restitution of conjugal rights. I, therefore, hold that after the Act of 1955 the respondent is not entitled to have a decree for restitution of conjugal rights against the second appellant.'
11. In this view, we are of the opinion that the learned District Judge was wrong in passing a decree for restitution of conjugal rights. We accordingly reverse the decree and dismiss the petition. Parties to bear their costs of both the Courts.