Shiv Dayal, J.
1.This is an appeal under Section 28 of the Hindu Marriage Act from a decree for restitution of conjugal rights passed in favour of the husband.
2. In his petition under section 9 of the Hindu Marriage Act 1955. Pannalal alleged that he was married to Tulsa in or about 1953. She gave birth to a daughter in 1957, but the girl did not survive for more than two days. Tulsa's father took herto his house for Diwali festival but thereafter she did not return.
3. Tulsa resisted the petition on the groundthat in fact the plaintiff deserted her and he treated, her with cruelty.
4. The learned Additional District Judge Gwalior, who tried the petition found that the plaintiff did not desert her nor did he treat her with cruelty. In the result he passed a decree in favour of the husband.
5. Shri Dwivedi, learned counsel for the appellant, invites our attention to Pannalal's stater ment. There he says that one day she requested him to escort her to her father's house and gave him to understand that she would return, with, him in the evening on the same day. He, therefore, left her at her father's house in the morning, but when he went the second time, in the evening,, to fetch her back, her parents started quarrelling with, him and Tulsa also abused him, whereupon, he returned to his house alone. This is contrary to what he said in the petition. And the suppression, of the fact that it was he who left her to her father's house is not without significance.
6. Furthermore, the plaintiff admits to have beaten her on occasions more than one. He also states the reasons for this behaviour. On one occasion he beat her because she used to get up late in the morning, that is at about 7, while he wanted his meals at 6, in order to leave for his duty. Qn another occasion he beat her because she did not put on the clothes which he wanted her to do instead of others which he did not want her to put on.' He says that he went to bring her back eight or nine times. He does not allege any immorality of the wife. He complained that her parents prevented her from returning to him but that part has been disbelieved by the trial Judge.
7. Tulsa's statement is that when she was living with her husband he used to beat her and did not give her clothes and proper meals, that she has been residing with her father for the last 3 years, (her statement was recorded on 6-4-60); and that Pannalal never came to take her back. It cannot be gathered either from the petition or front the petitioner's statement the date on which he left her at her father's house.
8. It is true that Tulsa does not state the extent of beating but it is beyond doubt that Pannalal used to beat her sometimes. Tituria (P. W. 2) also says that Pannalal beat his wife sometimes. Admittedly, Tulsa has withdrawn from the society of her husband. The question is whether she has withdrawn without, reasonable excuse.
9. Shri Dwivedi, learned counsel for the appellant strenuously argues that beating by the husband is by itself reasonable cause for her to withdraw from her husband's society and although such conduct falls short of cruelty within the meaning of Section 10(1)(b) of the Act, yet, it can justify her in not returning to her husband's house.
10. It is always the choice of a person when to go to bed and when to rise; which clothes to put on and which not. In these matters the other spouse has to be tolerant. Idiosyncracacies of thisnature may sometimes be irritating to the other spouse but they are part of the lottery in which every spouse engages on marrying and taking the partner of the marriage 'for better, for worse.' See Edwards v. Edwards, (1949) 2 All ER 145. A3 a devoted wife it was no doubt Tulsa's duty to get up before her husband was to leave for his work, but if she did not, the husband was not entitled to beat her. Likewise, as the dutiful wife, she should have respected the wishes of her husband as to the particular clothes to be put on a particular occasion. But if she did not, again, the husband had no right to beat her. The husband cannot be heard to retort that the wife should also bear his irritating idiosyncracacies when he beats her. Everyone has certain whims in his ways of life, but no husband has the right, irrespective of the community to which he belongs, to do physical violence to his wife. And if he does, she has every right to resent. It is altogether a different matter whether or not a particular violence would entitle her to separate residence or constitute a sufficient ground for judicial separation under section 10 of the Hindu Marriage Act, 1955 (hereinafter called the Marriage Act).
11. This brings me to an important and rather difficult question whether an excuse not falling within the purview of Sub-section (2) of section 9 of the Marriage Act, can still be a ground for dismissing a petition for restitution of conjugal rights on the ground that the spouse did not withdraw from the society of the other 'without reasonable excuse'. To put it differently, can the court trying the petition under section dismiss it on a ground other than those contained in sections 10, 11, 12 and 13 of the Marriage Act?
12. Section 9 reads thus:
(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 nuility of marriage or for divorce.'
Doubtless Sub-section (2) lays restrictions on the defence to be taken in an action for restitution of conjugal rights. But can not restitution be denied on the ground that the withdrawal of the other spouse was not without reasonable excuse within the meaning of section 9(1), even if no grounds under section 9(2) is made out? It appears on its face that the emphatic language of Sub-section (2) makes the grounds of defence exhaustively restricted to those which fall within the purview of Sections 10-13 of the Marriage Act. At the first sight it seems clear on a review of those sections that the policy of law was to enact harmonious provisions so that, for instance, if the wife cannot establish a ground under Section 10(1)(b) for judicial separation, she should not be allowed to resist restitution of con-jugal rights on a ground of such cruelty as falls short of the requirements of section 10(1)(b). It is remarkable that the wording of section 10(1)(b) of the Marriage Act is the same as that of Section 18(2)(b) of the Hindu Adoptions and Maintenance Act 1956 (hereinafter called the Maintenance Act).
13. But on a closer examination I find that Sub-clause (g) of section 18(2) of the Maintenance Act enables a Hindu wife to live separately from her husband without forfeiting her claim of maintenance 'if there is any other cause justifying her living separately'. Although this sub-clause is to be read ejusdem generis, it cannot be denied that the husband's conduct falling short of cruelty required under Sub-clause (b) can sometimes well justify the wife in living' separately from the husband and claiming maintenance from him. All that is needed is to satisfy the court that the facts and circumstances of the case justified her living separately from him. Indeed the Court must be satisfied that the reasons are of a grave and weighty character.
14. No provision such as the said Sub-clause (g) is found among the grounds contained in Sections 10 to 13 of the Marriage Act. The result is that it is possible to hold with the aid of section 18(2)(g) that the wife is entitled to live separately even though the husband's conduct falls short of legal cruelty within the meaning of section 10(1)(b) of the Marriage Act. If that is so, not to dismiss the husband's petition for restitution of conjugal rights on the same grounds and for the same reasons, would be anomalous and contradictory in terms.
15. The foregoing discussion irresistibly leads to the conclusion that it is possible to dismiss the husband's petition for restitution of conjugal rights on the ground that the respondent did not withdraw from the society of the petitioner 'without reasonable excuse' (i.e. 'withdrew for a 'just cause') within the meaning of section 9(1) of the Marriage Act, despite the absence of any ground satisfying the requirements of Sub-section (2). The foundation of the right to bring a suit for restitution of conjugal rights is the fundamental rule of matrimonial law that one spouse is entitled to the society and comfort-consortium -- of the other spouse. But where the wife has abandoned or withdrawn from the society of the husband for a just cause, the court should not grant restitution.
16. Mere beating of the wife may not always entitle her to a judicial separation, but she is justified in refusing to return to her husband's house, unless and until the husband makes amends and apologises in a manner which would be equal to the wrong done to her. If he corrects himself and further satisfies the Court that he made genuine efforts of reconciliation but there is unjustified rejection of reasonable offer, it may amount to desertion on the part of the wife. As observed in, Simpson v. Simpson, (1951) 1 All ER 955 it is dangerous to formulate principles of law out ot particular circumstances in particular cases and then treating those principles of law as being, so to speak, explanations or riders to the actual statutory language. This dictum was followed andapplied in Mangla Bai v. Deorao, Misc. Appeal No. 74 of 1959: (AIR 1962 Madh Pra 193).
17. In this case we find that admittedly Tulsa was being beaten by Pannalal; that he himself left her at her father's house; and that there is no satisfactory evidence of an offer of reconciliation from the husband, nor of his having made amends. All this justifies the wife in living separately from the husband and the order passed by the trial Judge cannot be maintained.
18. The appeal is allowed. The judgmentand order passed by the Additional District Judge,Gwalior are set aside and the respondent's petitionunder section 9 of the Hindu Marriage Act, 1955,is dismissed. In the circumstances of the case wedirect that the parties shall bear their own costs inboth the Courts.