P.A. Chowdary, J.
1. This is an appeal in a matrimonial cause against an order of dismissal passed by the additional judge, city civil Court, Hyderabad dismissing OP No. 140/76 filed by the husband the husband sued his wife under sec. 9 of the Hindu Marriage Act for restitution of conjugal rights. He alleged that his wife had withdrawn from his society without any reasonable excuse.
2. The husband hailed from Hyderabad and the wife comes from Bombay. They were married at Hyderabad on july 2. 1975 After the marriage they lived for a short while together at Bombay in the house of the petitioners father-in-law Thereafter they came back to hyderabad on August 12 1975 where they stayed together in the husband's house. In that house the aged mother and the unmarried sister also resided contributing not a little to this matrimonial disharmony. On September 28, 1975 the wife went to Bombay and returned back to Hyderabad on 23-2-1976 where she stayed till 27-5-1976 Once again the wife left the husband and went back to bombay this time never to return back on 28-5-76 she issued from Bombay a lawyer's notice to the husband accusing him of cruelty. The wife charged the husband with physical acts and assault and mental torture. In the notice she alleged that the husband was acting without affection and even without human sumpathy by denying her medical aid and even proper food. She further alleged in that letter that the husband's interest in that letter that the husband's interest to get money from her father was greater than his love for her. She charged the husband with placing ice slabs on her back and shoulders for about one hour tightly holdig her hands was also said that her father when came from Bombay attempting to settle their quarrels was not even permitted to see his daughter. The letter ended with a demand for maintenance at the rate of Rs. 450/- per month. To this letter, the petitioner-husband made a reply the substance of which is to blame the wife as not willing to stay with him except on his separation from his aged mother and the unmarried sister. He deneied that he ever demanded any money from the wife's father but admitted the receipt of Rs. 5,000/- by a demand draft which he admitted to have received towards monetary assistance to enable the couple to purchase household articles. He denied the wife's allegation that gold and other ornaments were retained with him. Strangely the charge of treating her cruelly and beating her physically was left undenied. Thereafter it appears that the wife filed a criminal Miscellaneous petition in Bombay and obtained an order for her maintenance under S. 125 Cr. C.P.C. the Bombay criminal Court awarded a maintenance at the rate of Rs. 350/- per month which was reduced to Rs. 300/- by the Bombay High Court .
3. It was in these circumstances the husband had filed the present application under sec. 9 of Hindu marriage Act, 1955 alleging that his wife has withdrawn herself without any reasonable excuse from his society and that therefore the Court may grant him a decree for restitution of conjugal rights. His case was mainly rested upon the fact that the wife has been living away from him and was living in Bombay. The wife had filed a counter admitting that she had been living away from the husband but justifying it on the ground that the husband was treating her cruelly and beating her with any respect due to a wife.In support of these rival contentions, the husband examined himself as P.W. 1 and the wife examined herself as R. W. 1 and her father as R. W. 2 and a local gentleman as R. W. 3 the registered notices and letters that has passed between the petitioner and the father of the wife had been exhibited. The Additional Judge. City Court Hyderabad, on a consideration of these pieces of evidence held that the wife had a reasonable excuse to withdraw herself from the society of the husband it is against this order the present appeal had been filed.
4. Sec. 9 of the Hindu Marriage Act, on the basis of which the husband had filed the above mentioned O. P. Reads thus:-
'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'.
Explanation:- Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.'
5. Now in this case the wife had admitted that at least from May, 1976 she had been staying away from the husband at Bombay. The burden of proof that she had a reasonable excuse thus to stay away from the society of her husband therefore lies on the wife. Now in an effort to discharge this burden she had spoken to the ill-treatment she was subjected to by her husband and more particularly by her husband and more particularly by her mother-in-law and sister-in-law. She even had spoken to the fact that her husband had placed ice slabs on her body holding her arms tight in an effort to immobilize her and maximize her suffering she had stated in her evidence that she had been treated merely as a maid servant for scrubbing the floor and sweeping the rooms. She was not even allowed to go into her bed room. She also stated that she was not being given proper food and medical aid. This evidence of the wife was supported by the father and in a way by R.W. 3. The father who had sent an affectionate gift of Rs. 5,000/- by a draft to his son-in-law deposed that when he came to visit his daughter was being ill-treated by her mother-in-law and sister-in-law. In a way R. W. 3 supported this case of the wife we find no reason to disbelieve this evidence given by the wife in support of her case set up early in her counter: Acts of cruelty and torture by the husband appear to be in abudance. The father who had not only given his daughter but had sent Rs. 5,000/- to his son-in-law cannot be said to have been speaking falsehood and for seeking separation of his daughter from her husband the fact that these very acts of cruelty had been found mentioned in the lawyer's notice issued from Bombay by the wife and were not denied specifically by the husband in his reply would lend credence to them. In this state of the record we are prepared to believe the evidence given by the wife and her witnesses to the effect that she was being treated by her husband and her mother-in-law and sister-in-law very badly at Hyderabad. We accordingly agree with the lower Court and its finding that the husband had been treating the wife with cruelty within the meaning of the above Act.
6. The above conclusion is sufficient to afford ample justification for the wife to stay away from the husband. A wife Is neither husband's chattel nor his slave to suffer any acts of cruelty and indignity at the hands of (sic) wife with her husband can only be possible on the basis of male domination over the female. In this case it has been amply proved that the husband had been treating her badly and so badly as to deny her even food and medical aid This is more than enough for justifying the wife to keep away from the husband. The language of sec. 9 of the Hindu Marriage Act doe snot require any reasonable justification or even reasonable cause for a spouse to stay away from the company of the other spouse sec. 9 is satisfied if there is a reasonable excuse for staying from the matrimonial home. The word reasonable excuse is interpreted in sadhu singh v. Jagdish Kaur as meaning as something less than justification, but something more than a mere whim, fad for brain-wave of the respondent. That judgment held that 'it is a fact which has to be determined with reference to the respondent's state of mind in the particular circumstances of each case'. Prior to Act 68 of 1976, sub-s. (2) of sec. 9 refused to recognise any conduct as a reasonable excuse in the meaning of sec. 9(1) which would not support the petitioner for judicial separation or for nullity of marriage or for divorce. Act 68 of 1976 had been enacted deleting sub-sec. (2) of sec. 9 of the Hindu Marriage Act and dismantling this high standard of justification for separation It would clearly show that our parliament did not intend tha the hitherto stringent conditions need be satisfied by a spouse for keeping herself away from the society of the other. Even at a time when sub-sec. (2) of 9 was on the statute Book the madras High Court ruled in Kanna v. Krishna swami : AIR1972Mad247 'a woman of modern times is entitled to insist that her husband should treat her with her husband will be peaceful and happy. Even if the husband satisfies the conditions stipulated in sec. 9(1) the Court will still have a discretion to grant or deny the relief of restitution depending upon the circumstances of each case, whether the misbehaviour or misconduct of the husband is such as will entitled the wife to refuse to cohabit with him'. In that case the madras High Court ruled that when it had become a practical impossiblity for the parties to live together it would be totally improper for the Court to order restitution of conjugal rights we find that there is more than a reasonable excuse in this case for the wife to stay away with her husband.
7. On the facts of this case we have no option except to confirm the order passed by the lower Court, Accordingly we dismiss this appeal. But without costs. Although we made an attempt in this case to bring the husband and wife together and the husband appeared to be in a mood to take his wife back the wife did not appear to be willing to go back. We express our regret and leave the matter there.
C.M.P. No. 12961 of 1982.
8. We direct the petitioner-husband to pay a sum of Rs. 500/- towards expenses of the litigation within three months from today. This petition is allowed in part. No costs.
9. Mr. N. Rajeswara Rao the learned counsel for the appellant asked for a certificate to be issued under art 133 of the Constitution of India for leave to appeal to Supreme Court we are unable to certify and accordingly reject that request.
10. Appeal dismissed.