1. This is an appeal by the wife from the order of the District Judge dated 10-10-1960 allowing the husband's prayer under Section 9 of the Hindu Marriage Act for restitution of conjugal rights upon her refusal, without reasonable excuse, to go with him to Bombay, where he is employed as a mechanic and her insistence, in spite of her husband's wishes, of staying at Indore in the house of an aunt, who has been for a long time in loco maternis to her. Though the case has been argued at great length, and almost the entire body of Indian and English Case law on this question has been canvassed, the problems that, arise are comparatively simple and can be formulated thus :
(i) Whether the husband has been guilty of cruelty which would entitle the wife to seek judicial separation. Instances alleged by the wife and substantially disbelieved by the lower Court are :
(a) that the husband once pushed her while she was pregnant which 'necessitated medical treatment and endangered her life,
(b) that he took away a child aged six weeks without regard to the mother's feelings and thereby caused her considerable mental pain,
(c) that on more than one occasion in the past he beat her with a view to relieving her of her ornaments so that he could sell them and spend the money on himself.
(ii) Whether the Court can be invited to look into factual allegations that, not being ones properly under Section 9(2), can still be reasonable excuse for withdrawing from the society of the aggrieved spouse in this case the husband.
The grievances under this heading are enlisted :
(a) the husband's failure to provide for the wife for a long period;
(b) his inability to earn sufficient money for supporting himself, the wife and two children;
(c) his getting into difficulties with his employer at Bombay in 1956 which necessitated hismaking good a loss of 350/- by borrowing the amount on a pronote from the wife's aunt;
(d) his general undesirability of character, in the words of the wife, 'love for money without any love for the wife or children.'
(e) as alleged in the appellate court his having sold away his agricultural land.
(iii) Whether in spite of the appearances the real position is that the husband has deserted the wife because he is unwilling to stay at 'The matrimonial Home'' established by the couple at the house of the wife's aunt, Saraswatibai at 24, Ada Bazar Indore.
(iv) Whether even in the event of this appellate Court upholding the order granting the restitution of conjugal rights, it should put certain conditions in effect assuring the wife that she would get the same quality of comfort and provision at Bombay as she has been getting at Indore from the aunt who is prepared to look after her and has already created, or is planning to create, a trust in her favour with an annuity paid out from the income.
2. The broad facts are as follows. The husband who was about 35 years at the time of his application in 1959, is the son of a cultivator having some land and a house in a village a few miles outside, Indore. He was married in 1946 when, he was about 22 years, and was expecting to become nothing better than mechanic. He had an aunt in Sushilabai Chagan a relation by marriage of the ruling princely house. On the other side, the wife, about 12 years of age at that time, was of a humble parentage, but she had virtually been adopted by her aunt, Saraswatibai Holkar, the childless wife of a near relation of the same ruling house. The two aunts, who at that time seem to have been on terms of friendship with their houses within about 3 or 4 furlongs in the town of Indore, decided that the two should be married, the only thing to recommend the husband in the eyes of the wife's aunt in the position of her mother being that 'he was a presentable young man.' Whether or not the Holkar aunt had thought of providing for the wife, she never investigated into his earning capacity, and ability to provide. for her adopted daughter, on the lines which she now thinks becoming.
Any way, soon after, the young man got a jot at the pite of Gandhi Sagar as a mechanic and went there. At that time they did not set up a house of their own; the wife was living with the Holkar aunt as the short period of stay with the Chagan aunt, ended in a quarrel between the two aunts, who by now had begun to dislike each other. From time to time, the husband used to come on leave and spend his time with the wife, mostly at the place of the Holkar aunt, at 24, Ada Bazar, Indore. Whether during this period the husband used to send regular remittances to the wife has been the subject-matter of evidence and of discussion. The recollections of the person concerned are vague; but it does appear that from time to time he used to send money and things to the wife, with special care that it reached her, through his friends, ' without passing through the hands of the Holkar aunt, who seems to have disapproved of any money being sent to the girl in her charge.
Be that as it may, neither the Holkar aunt who was in the position of the mother looking after the wife, nor the wife herself made the least grievance and asked for larger or more regular remittances. The wife was in her teens, and staying with the mother as is a most usual thing in this class.
3. Round about 1955 or 56 the husband, came to Indore after termination of his job at Gandhi Sagar. At Indore lie was for some time unemployed, and seems to have thought of starting on his own with some machinery establishment. This required money which he was too poor to meet out of the income from his land. Accordingly, he seems- to have suggested either through his wife or through one Shri Tare, the legal adviser of the Holkar aunt, that the might advance some money to settle him on these lines; but the aunt had her own ideas and would not advance anything because she had formed an opinion that this nephew-in-law was good for nothing. All the same, he had a job at Indore. During this time he stayed at the house of one or other of the aunts, but the wife was always with Saraswatibai.
4. At about this time he went to Bombay and worked for a few months as the assistant in shop selling chemicals and similar things. What exactly happened there is obscure; but he had to pay up something between 300/- to 400/- to his employer to make good some loss. It may have been an inadvertent slip or mistake on the part of the employee, the results of which he had to make good. He borrowed a sum of Rs. 350/- (on a pronote on the Holkar aunt's insistence) and paid up his employer. This incident, which might happen to even the most careful and the most honest person, has been reiterated by the aunt or the wife as the basis, and at the Bar as evidence, of his depravity, in a manner that is nothing short of nauseating.
5. It was at about this time, when the husband was more than 30 and the wife more than 20, and there were two children, the elder about 3 or 4 years and the younger just born, that the husband began to insist that the wife should come with him. The Holkar aunt, however, would not hear of it, and the wife who had from her childhood been completely under the influence of this aunt, refused to go with him. There seems to have been scenes in the family in which according to the husband the aunt used bad language; the wife's allegations have to be separately examined at length, being part of her defence.
6. At about this time, he got a job at Bombay; his insistence on the wife's coming to him increased, as also her determination on staying at 24 Ada Bazar, Indore, tinder the aegis of the Holkar aunt. One of the scenes in this connection has been described by both the parties in substantially the same terms; though the motives attributed are naturally different. By the time the second child arrived and was a month or two, the husband thought of forcing the wife to follow him by carrying both the children, the one aged 4 and the second in arms, to the house of the Chagan auntwhich was, as it were, his Indore residence. The masterful influence of the childless ancient seems to have killed the mother instinct in the younger woman, and she refused to budge. The younger child was a problem, and after waiting for a few hours, the husband sent it back to the obviously triumphant satisfaction of the wife and the Holkar aunt. It is this anecdote which has been described as an act of hard-hearted cruelty.
7. Meanwhile, allegations and counter-allegations continued and the husband asserts that the Holkar aunt used bad language to him and defied him to get the wife by moving the court. He went back to his Bombay post and by 1959 made this application.
GROUND NO. 1 :
8. The husband's straightforward case is that the wife has refused in spite of his repeated requests to go with him to Bombay where he is now employed, and live there with him and discharge her marital duties. The defence is somewhat complicated. The wife is categorical in her assertion that she is 'unwilling to go to her husband under any circumstances, because she has found that he loves money only and therefore has lost all confidence in him'. Thus, prima facie, the husband has a right to get an order under Section 9 as the wife's own admitted position is one of absolute withdrawal from his society. Whether or not this 'withdrawal from the society of the other' mentioned in Section 9 is identical in its connotation and legal effect to 'desertion' in the subsequent section, it is for the wife to prove in answer, one of the grounds as would justify a prayer for judicial separation or annulment of marriage or divorce, or on the thesis propounded on her behalf to show ' 'reasonable excuse'' which need not quite come up to the requirements of Section 9(2).
9. Some discussion has been made at the Bar about the real purport of the phrase 'withdrawal from the society of the other' spouse. In most of the cases reported in England this had been used as practically interchangeable with desertion. For our purposes it is unnecessary to enter into any elaborate discussion about whether there can be withdrawal which does not amount to desertion; because the husband in his application charged the wife with the factum of intentional refusal to give him consortium and the animus of persisting in that attitude in spite of his requests. Just as it is open to a party charged with desertion, to show that the factum of separation is only temporary and there is no animus, it is also open to the party charged with withdrawal to show that withdrawal is a purely temporary affair, without any intention of permanently refusing consortium to the other party.
10. The allegations of the wife as would come properly under Section 9(2) call for examination on facts only. While quite an elaborate list of misdoings on the part of the husband had been set out, the evidence about them is of very little value and failed to convince the District Judge For instances, there is an allegation of repeate physical violence to the wife with a view to snatching away her ornaments. The answer is given by the very determination on the part of the wife as well as the aunt to keep all ornaments under lockand key so that any amount of violence could not secure the husband even a single bit. As for the, alleged demand for money from them, the husband never went a step beyond the suggestion made through Mr. Tare, legal advisor to the aunt.
On one occasion the lawyer, acting on the request of the nephew-in-law, suggested to the aunt that she might advance some money to enable him to settle himself on his own at Indore. The aunt was not prepared to give anything and there was an end to it. On another occasion he borrowed a sum of Rs. 350/- on a pro-note from the aunt to pay off an employer at Bombay for some loss caused by him. Apart from this two there is altogether no basis for the allegation that he threatened. Whatever the two women that is, the wife and the aunt say in this regard is suspect as they themselves state that they are prepared to do everything by which the wife can stay away from the husband. There is of course the evidence of a domestic woman-servant which in the circumstances of the case is not of any value.
11. A particular incident is described as evidence of gross brutality on the part of the husband. When 'the wife was in an advanced state of pregnancy with the second child, it is alleged that the husband either pushed, or dragged, or threw her down the stairs of the house, in a manner which has been differently described by the three witnesses. A comic feature of the three versions of the story is that the picture painted by the women servant is much darker than that painted by the aunt, which itself is a shade worse than that given by the wife. Considering the circumstances in which it is said to have been done, it is extraordinary that the wife got away so lightly and did not suffer miscarriage. It is alleged that she had to take medical help, and was actually attended to by a lady doctor; but strangely enough, though named in the wife's evidence, the doctor has not been called to depose in court. I have no doubt that this incident is only a figment of the imagination of the woman,
12. The story of taking away the child has already been referred to and is no doubt common ground; but far from showing cruelty on the part of the husband, it shows the wife and even more, the aunt in the most unbecoming dolours. The only fault on the part of the husband was that in spite of all that had happened he still believed that his wife had some trace of motherly feelings in her. As soon as he found that she did not have any, he sent back the child, even though in that context it looked like a bad loss of face.
13. Apropos of this, the theory has been set up that in spite of all appearances, it is the husband who is the deserter and not the wife; but this is so ingenious as to call for examination under a separate heading. We have therefore to hold that the wife has no defence as would properly come under Section 9(2) of the Hindu Marriage Act.
GROUND NO. 2 :
14. It is because of this that the case set up on her behalf is to the effect that she has got other 'reasonable excuse' which would justify the Court in refusing an order for restitution of conjugal rights.
15. The general problem in this connection is, whether in view of the mention of appropriate grounds of defence to an application for restitution of conjugal rights in Sub-section (2), 'reasonable excuse' in Sub-section (1) should be meant to refer only to those grounds; or can be understood to include others which, without being ones within the letter of Sub-section (2), can still call for the dismissal of the petition. The Act itself is comparatively new and no judgment has been reported giving a clear categorical answer to this question. On the one hand, it might be urged that the clear specification of the appropriate grounds of defence excludes all the others. On the other hand, Sub-section (1) does refer to 'reasonable excuse', for consideration by the Court whether or not it is raised in defence; whereas sub-section (2) refers to the grounds that might be set up by the party opposing the petition.
16. English case-law leaves no doubt that there may be 'a reasonable excuse' which is not one of the grounds mentioned in Sub-section (2) and may be something less than a justification for separation or annulment or divorce, but may still justify the court in refusing the prayer for restitution of conjugal rights. A number of the older cases have been reviewed in the judgment Timmins v. Timmins, (1953) 2 All ER 187.
'Grave and weighty conduct on the part of the other partner to the marriage which may fall short of cruelty but may still justify a refusal on the part of the Court to order restitution of conjugal rights.'
The typical cases are those in which the husband while not guilty of conduct falling under the definition of cruelty or other ground upon which divorce or separation could be sought, is still inclined to be overbearing or dictatorial or of hasty temper or accustomed to use unmeasured language. In that case, the trial court was in fix, because on the one hand there was absence of cruelty properly so called or other similar defence to the prayer for restitution of conjugal rights; on the other, the husband was overbearing and dictatorial and immoderate in his language which made it anxious that
'if an order for restitution were made and the wife went back, he might not again be overbearing.'
Still, it felt that the husband was entitled to restitution and much as it regretted it, it had to grant the prayer. The appellate Court felt that while there was absence of cruelty, still such grave and weighty conduct could justify refusal of restitution.
17. The cases reported in Ram Prakash v. Smt. Savitri Devi, AIR 1958 Punj 87; Gurdev Kaur v. Sarwan Singh, AIR 1059 Punj 162; and Gurcharansingh v. Smt. Waryam Kuar, AIR 1960 Punj 422, touch on this topic. In the second of these rulings, that Court almost accepted the English principle taking a wide view of 'reasonable cause'.
'The Court has discretion to refuse relief it reasonable cause exists even in the absence of matrimonial offence. The test, however, as to what constitutes reasonable cause would vary withthe circumstances of each case. It will have to be applied in the changed social conditions of today and not in the rigid background of the old text of Manu or other Hindu law givers............'
In my opinion, the very fact that the legislature has thought fit on the one hand to set down the appropriate defences in Sub-section (2) and at the same time to use the words 'reasonable excuse' in Sub-section (1) shows that the latter means something more than the former. In principle, therefore, it is open to the person resisting the prayer for restitution of conjugal rights to invite the Court to consider the fact that though the petitioner may not have done something equivalent to a matrimonial offence of the nature set out in Sub- section (z), still his character and antecedents are such that it would be inhumane to grant restitution. But what that inhumanity should be would depend upon the facts of each case. Most often as practically in all the English cases referred to in (1953) 2 All ER 187, it would be similar to, though of a lesser degree than one or other of the matrimonial offences. It is also conceivable that reasonable excuse may be a circumstance which shows the husband by habit to be shockingly disregardful of human decencies. A case came up recently in which the husband was a party to the marriage being solemnized literally by capture of the girl, and later on applied for restitution of conjugal rights. Individual instances can be multiplied but invariably there would be a circumstance not amounting to a matrimonial offence still making it extremely unsafe for the other party to be compelled to go and live with the applicant.
18-20. The question here is, whether any of the allegations in this regard made by the wife have been factually substantiated and really have the effect of 'grave and weighty conduct'. (His Lordship considered the facts and concluded :) Thus, accepting the principle contained in the English rulings, that there may be reasonable excuse in grave and weighty conduct not amounting to matrimonial offence, the husband is not guilty of any of them.
GROUND NO. 3 :
21. This takes us to the most ingenious part of the appellant's argument, namely, that the matrimonial home of the parties is 24, Ada Bazar Indore, and by leaving that home for his employment at Bombay the husband is guilty of desertion, and not the wife. This argument is really breath-taking because we have it, that on the one hand, ever since 1957 the husband has been begging the wife to come to him to establish a separate house and she has been refusing, and has categorically averred here that 'in no event would she go to him', and the aunt has been defying him to get the wife through Court. It is argued that the matrimonial home is 'a settled state of affairs', and the party who leaves it should show sufficient reason, why the other should follow him; further, either party to the marriage is entitled to be at the place where it earns its livelihood. In case both are earning and have necessarily to stay at the different places, it would be a matter for adjustment; and improper to hold that the wife should always yield, and giving up her livelihood go to where the husband earns. As general pro-positions these are, unexceptionable. But they arenot applicable to this case.
No. 24 Ada Bazar is not 'the settled matrimonial home at the choice of the parties, the husband is going to Bombay not with the animus of deserting his wife, but to earn his livelihood, and the wife has not to stay at Indore to earn hers. The parties happened to be at 24, Ada Bazai Indore for sometime, because the aunt, who is virtually in the position of the mother, lived there and according to the custom of the class to which the parties belong, the child-wife after the marriage had necessarily to live there. For some more years, the husband was either at Gandhi Sagar or at Indore itself or on the look out for employment. During this period the wife stayed with her adoptive mother though the husband would much rather have her to stay with his other aunt at Indore. They had not (and have not even now) set up their own establishment by free choice. I is only when the parties set up their own domestic establishment, with due regard to their ways of earning livelihood, that one can say that the settled state of affairs has been reached, and the party that disturbs it has to satisfy the other that the change is conducive to their domestic happiness and harmony. That stage has not yet been reached in this case.
22. It is altogether surprising that it should be argued at all, that the wife is earning her livelihood at Indore, and has necessarily to reside there in connection with her profession. In this connection it has been urged on her behalf 'that like birds building their nest near their feeding places', either party to marriage, should be allowed to reside where it earns its food, without being compelled to go to that of the other. The fact is that the wife is not earning, but is only living on the aunt's bounty. Whatever the moral property of this and whether or not the aunt has already created or is planning to create a trust from which an annuity is to be paid to the niece, it is difficult to understand why the latter has necessarily to stay at Indore to draw the amount. If it is a case of working and earning, departure from the place may at times end the employment; but where the wife is getting or hoping to get an annuity from the aunt, it is perfectly easy to get it sent to Bombay or to any other place, where she lives with her husband. The position is that the aunt would give the annuity only if the niece lives at Indore and not where her husband lives and earns; and will give nothing if she goes to the husband outside Indore; a Court cannot help in the implementation of such terms, which are against public policy and all social decencies. Thus, the argument that the parties earn separate livelihood at different stations is baseless. The theory of a matrimonial home at 24, Ada Bazar Indore is fantastic.
GROUND No. 4:
23. Finally, it is suggested that even if the order of the lower Court is upheld, some conditions should be made to the effect that the husband should provide to the wife at Bombay, amenities comparable to the ones that the aunt is actually giving her or is prepared to give her a Indore. Apart from the fact that such conditionscannot be effective, they are objectionable in principle. It is obviously impossible even for persons in very affluent circumstances to give at Bombay the same housing or even the fooding amenities, as is possible at Indore in an ancient palace, or on a jagir granted to some member of the old princely house. All that can be excepted is that the mechanic at Bombay will , look after the wife and the children in a manner consistent with human and social dignity, but within his means. There is altogether nothing in the history of the relations of the parties to show that the husband would fail in this. Quite on the contrary, the wife and her aunt have been stating in this way m this regard.
24. Generally speaking, it is the duty of Courts in cases of this nature to see that one party to marriage does not terrorise or oppress the other or take undue advantage of its helplessness. In the social conditions that prevail in India, the oppressor is quite often the husband; but that is not invariably so. The present case is the one where, an overbearing aunt and her protege, the wife, are the oppressors and the husband, a poor but obviously self respecting mechanic, is the victim.
25. The result is that the order of the lower Court is upheld and the appeal is dismissed with costs and pleaders fee payable by the appellant to the respondent.
26. I agree that the appeal would bedismissed with costs although I would express no opinion upon the question whether the term 'reasonable excuse' as used in subsection (1) of section 9 of the Hindu MarriageAct, No. XXV of 1955, includes a ground whichis not one of the grounds mentioned in Sub-section (2) as, in my opinion, it is unnecessary forthe purpose of the present case.