1. This is an appeal by Shyamlal, against the judgment and decree dated 22-10-1964, passed by the learned 2nd Additional District Judge, Bhopal, in civil suit No. 2-A of 1964, whereby the petition of the appellant under Section 9 of the Hindu Marriage Act for restitution of conjugal rights was dismissed with costs.
2. It is not disputed that the appellant was married to Saraswatibai respondent at Sehore in the year 1947, and both of them lived together as husband and wife till November 1960. The respondent has 2 daughters and 1 son from the appellant and at present they are living with the respondent.
3. The appellant filed an application under Section 9 of the Hindu Marriage Act alleging that the respondent left his house in November1960 on the excuse that her mother was ill at Sehore, and when she did not return for about a fortnight, he went there and requested her to come back with him, but she refused to live with him as his wife. The appellant served her with two notices dated 29-5-1961 and 29-6-1961 and was ready to give her proper treatment but to no avail and she refused to come back to him. Hence the petition.
4. The respondent resisted the petition on the ground that the appellant did not give her proper treatment during her illness and she was sent to her mother at Sehore. Her children were also ill at the same time, and they too were also not properly medically treated. She also said that the petitioner used to beat her cruelly with the result that she became ill. According to her, the petitioner is keeping a mistress, and be in the presence of that mistress, forced the respondent to have sexual intercourse with him. It is further said that the petitioner's treatment with her is so cruel that she has a reasonable apprehension in her mind that it would be injurious for her to live with the petitioner.
5. The learned Additional District Judge framed 4 issues on the pleadings of the parties, and came to the conclusion that the respondent is keeping herself away from the society of the petitioner with a reasonable cause as the petitioner did not provide her with proper medical treatment during her illness, and even though the evidence on record is not sufficient to warrant an inference of legal 'cruelty' against the respondent, the learned Judge thought that it was a fit case wherein discretion under Section 9(1) of the Hindu Marriage Act should not be exercised in favour of the appellant. As regards having a mistress by the appellant, the learned Judge concluded that this allegation is not proved, and he, ultimately, on decision of issues Nos. 1 and 2, dismissed the petition of the appellant.
6. Shri C. K. Sharma, the learned counsel for the appellant, has raised before us only one contention that the respondent has not shown a reasonable excuse or just cause to stay away and not to live with the appellant as his wife, and the learned Judge went wrong in coming to the conclusion that the appellant neglected his wife and did not give her proper medical treatment when she was ill, with the result that she was made to go away to her mother. He has also urged that the appellant in his notice. Ex. P-3, got specifically mentioned that he was prepared to get the respondent treated in Hamidia Hospital and give her all the facilities, but in spite of this, she did not come hack to live with him.
7. Shri Khirwadkar the learned counsel for the respondent, on the other hand, urged that looking to the findings of the learned Judge, he has rightly dismissed the petition of the appellant.
8. The only question that arises in this appeal for decision is, whether the respondent had a reasonable excuse or just cause to stay away from her husband and whether the learned Judge was right in dismissing the petition of the appellant.
9. We have given our best and careful consideration to the respective contentions raised by the learned counsel on both the sides and to the material on record, and we are of the view that this appeal deserves to be accepted.
10. Section 9 of the Hindu Marriage Act has to be read with Section 23. According to these sections, the legal ground for refusing to grant relief may consist of any of the grounds on which the respondent could have asked for a decree for judicial separation or for a nullity of marriage or for divorce (Section 9(2)), and any conduct on the part of the petitioner or fact tantamount to the petitioner taking advantage of his own wrong for the purpose of such relief as mentioned in Section 23. Again, no relief can be granted to the petitioner if the respondent had reasonable excuse for withdrawing from the society of the petitioner.
11. It is also to be borne in mind that 'just cause' must be grave and weighty, or as it is sometimes said, 'grave' and 'convincing'. It is also pertinent to note that the standard of proof in matrimonial offences is that a fact on which the relief is sought must be established beyond a reasonable doubt.
12. Saraswatibai respondent, has admitted in her evidence that her husband (appellant) came to the Bus stand on the date she left for Sehore, and purchased tickets for her and children. She has also admitted that he came to Sehore, took away his children but as they used to weep in her absence and it was not possible to keep them without her, he returned them back to her. It is also in her evidence that the appellant did give notices and she replied that as she was not keeping good health, she would go to him only when she gets alright. Ordinarily, if the appellant was treating her cruelly, which she has not been able to prove, he would not have taken the trouble of coming to Bus stand and purchase tickets for her and the children, and see them off. If, according to her, the appellant expressed that the injections will do no good or that he was not in a position to spend for these injections and diet that the doctor had suggested, it would not in any case amount to cruelty. What amounts to 'legal cruelty' has to be considered by keeping in view the physical and mental condition of the parties, their age, environments, standard of culture and status in life.
13. The other allegations made by the respondent that the appellant had ill-treated her or has kept a mistress, is an after-thought, and she has not been able to prove this, and the learned Judge in this respect was correct in his findings.
14. It has also come in the evidence that Dr. Sen Gupta, treated her at Sehore, and she was suffering from chronic bronchitis and anaemia. It seems possible that she may have more facilities of treatment at Sehore and this fact also requires consideration as said by the appellant in his evidence that he had deposited some amount in the post office in her name, which fact has not been controverted by the respondent. It is also clear from the evidence, that the appellant had been going to Sehore, requesting the respondent to come back; he was even prepared to get her treated at Bhopal; he was making all arrangements for holding a Panchayat, and once he also brought his children, and taking all these facts together, it cannot be said that the appellant was not keen to get her treated properly. On the other hand, it all shows his anxiety that he was keen for his wife.
15. Even assuming that the appellant had asked his wife to get the treatment at Sehore, and there was no such proper arrangement at Bhopal, that by itself is not a reasonable excuse or just cause for the respondent to stay away from her husband and deprive him of his matrimonial alliance, when particularly looked to in the context of the evidence on record, which does not come to the required standard, and the fact that the parties had been living a married life for such a long time. In our view, the learned Judge was wrong in depriving the appellant from getting a decree for restitution of conjugal rights, when no reasonable cause for staving away from her husband is made out.
16. We also asked for a report from the Civil Surgeon, Sehore, as to the present state of health of the respondent, and he has reported vide his reply dated 21-11-1966 that except for the constitutional general weakness, she had no organic disease. We had also made an endeavour before awarding the relief to the appellant to bring about reconciliation between the parties, but it appeared that the respondent was not willing to live with the appellant.
17. So, having come to the conclusion that the respondent has not proved any 'grave' and 'convincing' reasons to stay away from the company of her husband, and the evidence on record does not prove 'cruelty' against her on the part of her husband, the appellant is entitled to a decree for the restitution of conjugal rights
18. This appeal, therefore, succeeds; the judgment and decree of the lower Court are set aside, and instead, a decree for restitution of conjugal rights is passed in favour of the appellant. Looking to the facts and circumstances of this case, the parties shall bear their own costs. Counsel's fee, Rs. 25, if certified.