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Gaya Prasad Vs. Mst. Bhagwati - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMadhya Pradesh High Court
Decided On
Case NumberFirst Appeal No. 23 of 1964
Judge
Reported inAIR1966MP212
ActsHindu Marriage Act, 1955 - Sections 9
AppellantGaya Prasad
RespondentMst. Bhagwati
Advocates:Rameshwar Prasad Verma, Adv.
DispositionAppeal allowed
Cases ReferredIn Smt. Tirath Kuar v. Kirpalsingh
Excerpt:
.....oose..........be held either as amounting to a marital offence or to any type of cruelty towards the respondent-wife. merely on the ground that the husband has small income and the wife, if she is allowed to serve at a place away from the marital home can substantially augment the family income, cannot be held to be a sufficient reason to deny the wife's society to the husband. nothing in hindu law warrants the adoption of such a course.14. for all these reasons, differing fromthe conclusions reached by the learned district judge, we grant a decree of restitutionof conjugal rights in favour of the appellant-husband against the respondent-wife. in thecircumstances, we leave the parties to beartheir own costs as incurred.
Judgment:

Bhargava. J.

1. The appellant Gaya Prasad filed a petition for restitution of conjugal rights in the Court of the District Judge, Hoshangabad, which was dismissed by him. He has, therefore, filed this appeal.

2. It is not disputed that the marriage between the parties took place in the year 1959. After the marriage, the respondent-wife Suit. Bhagwati lived with the appellant (petitioner) on two occasions; for the first time, she lived with him immediately after the marriage and then for the second time, after about six months of the marriage. The couple lived in the house of the petitioner at Bankhedi in the Sohagpur tehsil of Hoshangabad district. The petitioner averred in the petition that in June 1962, his father went to Pachmarhi where the respondent was residing with her parents to fetch her but she was not sent on one pretext or another. He urged that later he himself went to fetch her in the month of July 1962 but she refused to go and thus withdrew herself from the society of the appellant. The petitioner further urged that the parents of the respondent were contemplating to have her remarried and desired to extract money from him and, therefore, were unwilling to send her. On these allegations, he filed this petition on 10-7-1962 claiming a decree for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955, (hereinafter called the Act).

3. The wife-respondent resisted the petition. She pleaded that the petitioner had no income worth mentioning of his own and had no immovable property. The petitioner was living in very adverse financial circumstances. She, therefore, applied for being appointed as gram sevika with the permission of the petitioner sometime in 1059-60 in order to carve out a decent living. For this, she was required to execute a bond in the sum of Rs. 1,000 to the Government for serving the Government at least for three years. She was appointed as gram sevika in April 19fil after execution of the said bond. She urged that she had requested the petitioner to live with her at the place where she was required to live in connection with her service but he refused and, on the other hand, tried to coerce her to give up the service. It was also urged by her that in the month of June or July 1962, the petitioner and his father threatened to disfigure her by cutting her nose and tried to take her away by force with the help of some ruffians. It was urged that, in the circumstances, she was required to seek police protection. It was also contended by her that she was willing to give the petitioner matrimonial company if the petitioner desisted from coercing her to give up the service.

4. The trial Court framed necessary issues on these pleas. It came to the conclusion that the respondent had been serving as gram sevika since 20-4-1961 and was at present posted at Silwani; that the income of the petitioner was about Rs. 700 per year and it was, therefore, necessary for the respondent to take up the service to earn a good living; that the respondent was getting a monthly salary of Rs. 114 that the respondent had requested the petitioner to come and live with her but he refused to do so; that in July 1962, the petitioner had gone to Shobhapur accompanied by some other persons to compel the respondent to accompany him by threats and show of force and that in these circumstances, it could not be held that the respondent had withdrawn herself from the society of the appellant without any reasonable excuse. It also found that the respondent had failed to prove that she joined the said service with the consent or permission of the appellant. On these findings, the petition of the appellant was dismissed.

5 The most important point for consideration in this appeal is as to whether the wife respondent had withdrawn from the society of the husband (appellant) without any reasonable excuse. The lower Court found that the petitioner was following the profession of a cobbler and his income from that business was about Rs. 600 to Rs. 700 per year. It also found that the wife-respondent was, in fact, more educated than her husband and it was quite natural for her to aspire for a better life; that the parents of the petitioner were not shown to have an income sufficient to maintain the petitioner and his wife or to give them any fixed monthly allowance. On these grounds, the trial Court held that it was necessary for the respondent to make a living by joining the post of gram sevika. Il further held that as for continuing in service, she was required to slay at a place or places different from Bankhedi where the petitioner had his house and residence, it cannot be held that the respondent had withdrawn herself from the society of the petitioner.

6. The contention advanced by Shri Rameshwar Prasad Verma, learned counsel for the appellant, is that it was the bounden duty of the wife who was a Hindu lady to abide by the wishes of the husband in the matter of choice of the marital home. The wife cannot insist that she would continue in service at a place other than the normal residence of the husband against his wish or desire and cannot insist that the husband should feel satisfied if she permitted him to cohabit with her at the place where she was required to stay in the usual course of her service.

7. On the other hand, as the respondent remained ex parte in this Court, the best that could be urged for her is that the proposition that a husband alone had a right to say where the marital home should be is not a correct proposition of law though ordinarily the fact that the husband is usually the wage-earner may give him the right to choose home; that as in present case there was a difference between the couple on the choosing of marital home, that question should have been decided by them by their mutual agreement by give and lake and not by the imposition of will of one over that of the other and that as the attitude of the husband in the circumstances of the case was unreasonable and this fact alone led to a separation, the husband who is responsible for producing the separation in the said circumstances by reason of his unreasonable behaviour should be denied the decree of restitution of conjugal rights and should actually be held guilty of desertion.

8. In our opinion, the contention raised on behalf of the appellant is sound and must be upheld. In the Hindu society, wife's first duty to her husband is to submit herself obediently to his authority, and to remain under his roof and protection. She is, therefore, not entitled to separate residence and maintenance unless she proves that, by reason of his misconduct or by his refusal to maintain her in his own place or residence or for other justifying cause, she is compelled to live apart from him. (See Principles of Hindu Law by Mulla, 12th Edn., at p. 706 para 555).

9. In Smt. Tirath Kuar v. Kirpalsingh, AIR 1964 Punj 28, it has been held that where the wife refuses to resign her job which compels her to live away from her husband and join him, it cannot be said that she has not deserted him or has not withdrawn from his society without a reasonable cause. It has further been held in that case that the application of the husband for restitution of conjugal rights cannot be dismissed merely because she has expressed a desire that the marriage should continue and that the husband could visit her occasionally.

10. According to the ordinary notions if Hindu society, the wife is expected to perform the marital obligations at her husband's residence. She can accept service at a different place but not so as to clash with the husband's marital rights which she is duty-hound to render. It is, therefore, plain that there could only be an arrangement for her staying separately for continuing her service by mutual consent and concurrence of both the parlies but she could not impose her unilateral decision on the husband by merely stating that she had no objection to allow the husband to live with her at the place where she has accepted [he service. The attitude taken by the wife in the instant case amounts in our Opinion, to a virtual withdrawal from the society of the husband and, therefore, the factum of separation winch is established in this case amounts, in our judgment, to the matrimonial offence of desertion by the wife-respondent. The wife, in our opinion, was not entitled to reject the husband's offer to bring her to their matrimonial home. As she refused to go with the husband (appellant), she became guilty of desertion. In our opinion, further the husband (appellant) was not bound to accede to the request of the wife to give up his residence at Bankhedi where he was residing with his parents and to accompany the respondent to the place where she had taken up the service.

11. The 'animus deserendi' of the wife in the instant case is demonstrated by her statement in the witness-box. In paragraph 9 of her statement, she said.

^^vc rks x;k izlkn fy[kdj Hkh ns ns fd eSabudks dksbZ /kedh ugha nwaxk] rks Hkh eSa budks vius lkFk ugha j[k ldrh D;ksafdeq>s buls [krjk gSA vc rks eSa buds lkFk NqV~Vh esa Hkh ugah jguk pkgrhA ckUMdh E;kn [kre gks tkus ds ckn Hkh eSa x;k izlkn ds lkFk ugha jguk pkgrh D;ksafdeq>s buls [krjk gSA**

This makes it clear that the cessation of cohabitation in the instant case has been brought about by the fault of the wife (respondent) when there is no just or reasonable cause or excuse for putting an end to the existing marital relationship.

12. The lower Court also found that the appellant had gone to Shobhapur in the month of July 1962 accompanied by some persons in order to compel the respondent to accompany him by threats and show of force. The trial Court reached the aforesaid conclusion placing reliance on the testimony of the respondent, her mother Smt. Barfibai (R. W. 2), mid her father Malthoolal (R. W. 3) and her maternal-uncle Sunderlal (R. W. 4) also. We have carefully gone through this evidence and we are not impressed by its quality. In the first place, all these witnesses are closely related to the respondent, secondly it is the case of the respondent herself that she availed of police protection to save herself from being subjected to forcible removal by the appellant and his associates. It is also alleged on her behalf that a report was made at the police-station Piparia. However, it is curious to find that neither that report has been put on record nor has anyone of the police constables who escorted her to the railway station, where she boarded the train at Piparia has been examined in the case. The appellant, on the other hand, has vehemently denied the allegation of any threat being given by him to remove the wife-respondent by force. The learned Judge of the lower Court chose not to rely upon the statement of the appellant because in his cross-examination he had stated that he did not know before that Smt. Bhagwati was in service. It is true that this statement of the petitioner was a false statement, yet merely on that basis, the other portion of his statement could not be disregarded particularly when the remaining portion was in accord with the natural probabilities of the case. In our opinion, as the wife was determined not to live with her husband, the appellant, the story of threats being given by the appellant to carry her away by force has been introduced in the case.

13. The learned District Judge referred to the post-card (Ex. R-1) in paragraph 16 of the judgment and held that that letter also indicates the adverse altitude of the petitioner towards the respondent. He came to the conclusion that towards the end of the letter, there was a clear threat to the respondent to the effect that if she did not come back to him, her personal safety would be in danger. We have read the said letter (Ex. R. 1), dated 8-7-1963, very carefully. In our opinion, there is nothing in this letter which could be construed as a threat by the appellant to the respondent. In this letter the appellant has repeatedly requested his wife, the respondent, in a very mild and conciliatory tone to come back to the marital home and to forget the past in the interests of both the spouses. The last portion of the letter reads thus :---

^^vki dk vkSj esjk ljksdkj ;k ilan gks tk; blhesa vki dh vkSj esjh HkykbZ gSA vc vkius Hkh cgqr Hkksx Hkqxr fy;k vkSj eSausHkhA brus ls [kSj gSA vki Hkh esjh xyrh dks {kek djksA eSa Hkh vkidh xyfr;ksadks ekQ djrk gwa thA vc viuh nksuksa dh ubZ ftUnxh fQj ls tqMu nks blh esavPNk gS thA vHkh rd viuh nksuksa fdlh us ugha tkuh dh fdl rjg ls jg jgsa gS thAfpB~Bh fy[kh lks lgh gS thA**

There is nothing in this letter which could be read so as to suggest the conclusions reached by the learned District Judge. We, therefore, differing from the learned Judge of the Court below, hold that there is nothing in the attitude of the husband-appellant which could be held either as amounting to a marital offence or to any type of cruelty towards the respondent-wife. Merely on the ground that the husband has small income and the wife, if she is allowed to serve at a place away from the marital home can substantially augment the family income, cannot be held to be a sufficient reason to deny the wife's society to the husband. Nothing in Hindu Law warrants the adoption of such a course.

14. For all these reasons, differing fromthe conclusions reached by the learned District Judge, we grant a decree of restitutionof conjugal rights in favour of the appellant-husband against the respondent-wife. In thecircumstances, we leave the parties to beartheir own costs as incurred.


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