1. This appeal from the decision, of the Additional District Judge, Chhindwara dated 11-4-1961 has been filed by the husband, whose petition for restitution of conjugal rights against the respondent has been rejected. Another appeal (Miscellaneous (first) Appeal No. 26 of 1961) has been. filed by him against the order awarding interim maintenance at the rats of Rs. 25/- per month and for costs amounting to Rs 100/- to the respondent for defending the petition under Section 24 of the Hindu Marriage Act (hereinafter called the Act) on 30-1-1961. Both these appeals will be disposed of by this judgment
2. In his petition, the appellant had stated that he was married to the respondent on 26-4-1955; that the respondent lived happily with the appellant for about a year and half at Chhindwara; that the appellant then asked the respondent to accompany him to live at Ramtek but she refused and the appellant went alone to Ramtek; that he himself came to take respondent on some occasions but she did not go with him; that he sent a notice on 9-8-1958 to her and her parents requiring her return; that by the reply dated 18-8-1958 (Ex. P. 6) she refused to come back and is still living with her parents at Chhindwara.
3. The respondent opposed the petition, inter alia, on the ground that the appellant actually deserted her within the meaning of Section 9 of the Act; that he was treating her with cruelty and in an uncivilised manner; that the appellant had left her when her pregnancy was of three months'duration and made no arrangement for her delivery; that he was a drunkard and was addicted to gambling; and that he used to neglect providing hereven with food and used to take his food outside in some hotel. In short, the petition of the appellant was opposed on the grounds of desertion and legal cruelty.
4. In our view, this appeal must be rejected. The wording of Section 9(1) of the Act makes it clear that even when the conditions stated in that provision are satisfied, it is in the discretion of the court whether or not to pass a decree for restitution of conjugal rights. The discretion vested in court has to be exercised with caution and after due deliberation. The court has to consider the entire conduct of the parties to judge whether the petitioner deserves to get the relief and whether such relief is not unreasonable in the particular case against the respondent. In Alopbai v. Ramphal, 1961 Jab LJ 1513: (AIR 1962 Madh Pra 211) it was observed that where the circumstances of the case disclose that there is no possibility of the parties living together even in a state of happiness, a decree for restitution of conjugal rights would be unjustified. In Mt. Sita Kumar v. Debidin Kumbhar, AIR 1933 Nag 5 it was held that
'the emancipation of woman in recent years renders it necessary to restrict decrees for restitution of conjugal rights to cases in which there is a clear precedent for such a course.'
The same view was taken by a Division Bench of this Court in Smt. Ganga v. Meghsingh, F. A. No. 207 of 1959, D/- 20-1-1962.
5. Now, in the present case, though it is possible to say with some force that as the demand for the return of the wife was made only after one year of her leaving the husband's house, animus deserendi, as explained in Bipinchandra v. Prabhavati, (S) AIR 1957 SC 176 has not been established the ground of desertion for basing the petition was not available, yet there is positive evidence to show that the wife used to be habitually beaten by the petitioner appellant. She has complained that the petitioner even neglected to provide her with food.
It has been established by the testimony of D. W. 2 Basodilal, D. W. 4 Wazirkhan and the respondent herself that the husband was addicted to drinking wine. It has also been established that his means are quite limited. According to the petitioner he earns only about Rs. 30/- per month and according to the respondent his monthly income was about Rs. 75/-. It has not been proved by the petitioner that he tried to make any provision ofexpenses for respondent's delivery. It is significant to note that no blemish is said to attach to her character by the petitioner. The only reason which is now assigned for the attitude taken by the wife is that she is an educated woman and doesnot wish to continue as the wife of an uneducated man. This reason was not pleaded in the petition.
From the circumstances on record, we are persuaded to believe that the appellant must have made the life of the respondent so miserable that she had to choose to forgo the normal pleasure of married life and stay at her father's house as a dependent. It is worthy of note that the respondent possibly to make her earning self-sufficient took advantage of her stay with her father and received some training at the Normal School to qualify herself as a teacher. She has deposed that she served as a teacher at Rs. 75/- but her services were terminated as she was not properly qualified. On the whole we are inclined to believe the version of the respondent. In our opinion the attitude demonstrated by the appellant amounted to legal cruelty and constituted a ground for refusal of the decree of restitution of conjugal rights.
Even if it were possible to reach a different conclusion with regard to cruelty, we are satisfied that the relations between the parties have come to such a pass that they can no longer live happily together and it is in the interest of the happiness, health and safety of the wife that she is not forced to be in the company or society of the petitioner by a decree of the restitution of conjugal rights. This appeal therefore has no force and must fail.
6. We may now consider the controversy involved in Miscellaneous Appeal No. 26 of 1961. In this appeal the question for consideration is as to whether the Additional District Judge was justified in directing the appellant, who was the petitioner in the original application for restitution of conjugal rights, tp pay a sum of Rs. 25/- per month as interim maintenance from the date of the application up to its disposal and an amount of Rs. 100/-towards her expenses. Shri A. D. Deoras on behalf of the appellant has contended that the order is not warranted by Section 24 of the Act, which provides for grant of maintenance pendente life and expenses of proceedings only against a respondent and not against a petitioner, and that the words 'petitioner' and 'respondent' relate to the main petition and not to any ancillary or interlocutory application. On the other hand, it has been urged for the respondent that the words 'petitioner' and 'respondent' apply to the applicant under Section 24 of the Act and the opposite party in such application.
7. This question came up for consideration in the case of Nanjappa v. Vimala Devi, AIR 1957 Mys 44 and it was observed:
'There is no reason to think that the Legislature in making provision in Section 24 for maintenance pendente lite and expenses of the proceedings under the Hindu Marriage Act wished to depart from the principle that it should be open to the Court to make such provision in favour of a needy spouse whether such spouse figured as the initiator of the main proceedings or not. Unless there is something compelling En the language of Section 24 of the Hindu Marriage Act which confines such relief only to the petitioner it should not be restricted to one party or the other and there is no warrant for such a construction in the wording of Section 24. The only departure clearly intended by the Legislature appears to be to place husband and wife on the same footing and make it possible to grant such relief against the wife also. The word 'respondent' appearing in Section 24 seems to indicate the party against whom the application is directed and not the party arrayed as the opponent to the main petition.'
8. The same question was considered in Rameshwar Nath v. Kanta Devi, AIR 1957 Punj 85 and the view taken was that the expressions 'petitioner' and 'respondent' appearing in Section 24 refer clearly to the petitioner and the respondent in the application under Section 24 and not the original proceedings taken under the Act.
9. The matter was again considered in Raj-kumari v. Trilok Singh, AIR 1959 All 628 in whichthe above cases of Mysore and Punjab High Courts-were relied on and it was held:
'What the expression, 'order the respondent to pay to the petitioner the expenses of the proceedings' in Section 24 means is that, on an application of either the wife or the husband, it is open to the Court to order that the applicant shall receive from the opposite party all such expenses as the Court may think just. The word 'petitioner' refers to -the applicant in that application, and not in the original petition by which proceedings under the Act were started.'
10. Shri Deoras was unable to cite any ruling taking a contrary view, but he argued that from the language used in Sections 9, 10, 13, 19, 20 and 24 of the Act, it was clear that the word 'respondent' could only mean the respondent in the main application. We are unable to agree with this submission. We find nothing to restrict the meaning of the word 'respondent' as used in Section 24 to the person who was the respondent in the original petition.
11. The result is that both the appeals failand they are dismissed with costs. In First Appeal No. 54 of 1961, the costs shall be taxed atRs. 50/- and in the other appeal (MiscellaneousAppeal No. 26 of 1961) the costs will be fixed atRs. 25/-.