1. M. Satyanarayana and Veeramam the two were married in 1965. Among the four children they had, three are daughters of the age group of 12, 10, and 5 years. Their one son died. They were living separately from 1974. The husband sought for restitution of conjugal rights under Section 9 of the Hindu Marriage Act XXV of 1955 (the Act) on March 15, 1975. Earlier he received notice Ex. A-2 (January 9, 1975) and sent a reply Ex. A-3 (January 28, 1975). Soon thereafter on October 23, 1975 the District Munsif of Sriharikota at the instance of the wife ordered the husband to pay maintenance per order Ex. B-1 in M. C. No. 8 of 1975. The wife stated the above facts and resisted the petition inter alia to contend the petition is not bona fide. She averred the petition was a counterblast to defeat the order of maintenance passed on October 23, 1975. That they were living separately and the husband had deserted her.
2. The spouses gave evidence. Two more persons, one each were examined as their respective witnesses. The First Additional Subordinate Judge at Visakha-patnam rejected the prayer of the husband for restitution. Hence the above appeal by the husband.
3. In recent past Section 9 of the Act was amended and now under the amend ed Section 9, it is made clear that a petition for 'restitution' can be resisted on 'legal grounds', if the Court further a satisfied that there existed no 'reasonable' excuses for the opposing spouse to withdraw from his (or her) society. These are the two requirements now to be stated and proved in resisting an application for restitution of conjugal rights. Section 9 petition can also be opposed by seeking reliefs available under the Act in a 'counter-claim' on the grounds of 'adultery', 'cruelty' and 'desertion'. Speaking of a wife what grounds are 'legal grounds' within the meaning of the section? The grounds, if we may enumerate, must fall in the realm of personal law of Hindus and in the context the grounds include those that are set in the Hindu Adoptions and Maintenance Act 78 of 1956. Under Section 18 of that Act, a wife can claim maintenance if she is abandoned, deserted, neglected or cruelly treated, or the husband suffered 'Virulent leprosy', lived with another wife, resided with a concubine or converted to any other religion. These grounds which are available for a wife to claim maintenance.
and the same grounds can be the 'legal grounds' on which a wife can resist a husband's petition for restitution of conjugal rights. The above enumerated grounds stated in Section 18 of that Act may not be exhaustive. In the nature of things, it is better to hold those grounds are not exhaustive.
4. The facts of the instant case now may be adverted. The trial Judge recorded two findings, but state only one ground for rejecting the restitution petition of the husband. It is found the wife was attributed unchastity by the husband, therefore the prayer for 'restitution' by the husband under Section 9 of the Act was rejected. The counsel for the husband argued that the lower Court as of fact erred in the conclusion on the facts that husband had attributed unchastity. The evidence discloses that the husband in M. C. No. 8 of 1975 gave evidence. In that deposition the husband referred to (a) that he heard a rumour in the village of wife's intimacy with a named person, (b) that his mother commented of the wife's conduct and (c) that on June 10, 1974 he remonstrated the wife and asked her to avoid visiting a named person. The circumstances in (a), (b) and (c) were considered by the trial Judge and it was held the husband attributed unchastity to the wife. The circumstances (a), (b) and (c) even when cumulatively considered, it is argued, do not lead to the inference of attribution of unchastity to the wife by husband. The argument has force. It is possible on the evidence leading to (a) (b) and (c) that the husband heard a rumour, he remonstrated the wife. The two circumstances even read together cannot be inferred to hold that husband attributed unchastity to the wife. In that view of the conclusion, we are unable to affirm the finding and hold the husband attributed unchastity within the meaning of clause 2 (b) (legal cruelty) of Section 18 of Act 78 of 1956.
5. Whether the husband is entitled to restitution cannot be determined on that single circumstance in favour of the husband for the trial Judge considered , the evidence to hold the husband had deserted the wife. If that be true, it is a good defence for the wife to resist the petition of the husband.
6. The relevant facts leading to desertion of the wife are : Devagupthapu Sub-barao (Sarpanch of Mushirivada) and Dotta Bamamurthy Raju the two persons advised and the husband took her back to his house. Soon on arrival she rushed back to the said two elders, requested them to be relieved of their award for no sooner she entered the matrimonial home, the mother-in-law and her spouse both abused and threatened to 'beat' and 'kicked' her. Thereupon Rama Murthy provided funds to enable to return back to Srungavara-pukota her parents place. The facts relating to the mediation and the incident are admitted by the husband. The question is whether the husband is guilty of desertion on the above facts. The trial Judge recorded the finding but did not mention 'desertion' as a ground for rejecting the husband's petition. In our view the incident is proved for the husband admitted the incident. The event shows the wife was deserted. If ground of desertion is found against husband, desertion is a 'legal ground' to resist the petition under Section 9 of the Act. In that view, the order of the lower Court can be supported.
7. Before we part with the case, we may refer to an argument advanced by the learned counsel for the husband with reference to Section 23-A of the Act whereunder a counter-claim can be lodged by any of the spouses in any proceeding under any provision of the Act. The counsel urged on the facts of the case the wife did not make a counterclaim in the case, therefore, she cannot be permitted to contend 'desertion' as a ground to resist the petition. Speaking of options -- yes, the wife had option to lodge a counter-claim under Section 23-A, of the Act and press for judicial separation under the ground of 'desertion'. The fact she did not lodge a 'counterclaim' per se does not disable her to press the legal ground of desertion envisaged under the Act. This contention, in law or in procedure has no foundation and cannot be countenanced under the provisions of the Act.
8. The appeal fails and is dismissed. No costs.