R.N. Misra, J.
1. It is a husband's appeal under Article 4 of the Orissa High Court Order read with Clause 10 of theLetters Patent and is directed against the reversing judgment of our learned brother Acharya, J.
2. In March, 1967, the appellant married the respondent. They lived together till July, 1969, when the wife went away to her father's house and did not return. On 17th March, 1970, the husband applied for restitution of conjugal rights to the learned Subordinate Judge at Balasore. The wife resisted the claim by contending that her mother-in-law was an ill-tempered lady and she veryoften used to hurl abuses at the defendant in very filthy and objectionable language on some pretext or other as also on the ground that the defendant's parents had failed to pay the dowry as promised. The husband who was working as a teacher at a place away from home was occasionally coming home and the mother-in-law was poisoning his ears against the defendant. She pleaded that on account of such constant rebukes and abuses, she suffered from nervous debility and ultimately became ill-At the trial, plaintiff examined himself and 3 other witnesses and the defendant examined herself and 2 other witnesses including her brother. The learned trial Judge proceeded on the footing that the wife had a legal duty to live with her husband and the defendant had failed to substantiate the plea of cruelty, and being satisfied that the husband was keen to have the company of the wife granted a decree for conjugal rights.
3. Upon wife's appeal to this Court, the learned single Judge has come to hold :
'On the oral and documentary evidence on record I am inclined to believe the case put forward by the defendant-appellant that during her stay in her father-in-law's house, her mother-in-law ill-treated her and made her stay in that house a miserable proposition. From the tone of the husband's letter to his wife it is quite evident that the mother-in-law of the defendant was also successful in poisoning the ears of his son, the plaintiff, against his wife. On the above premises one cannot find fault with the defendant's disinclination to go back to her father-in-law's house, especially when her husband was not staying at that place. On the materials on record I am also inclined to take the view that the plaintiff' instead of being particular about leading a matrimonial life with his wife, the defendant-appellant, was only insisting on the defendant to return to her father-in-law's house possibly only to satisfy the wishes of the plaintiff's parents. Consideration to satisfy the wishes of the parents without expressing and/or indicating a sincere and genuine desire for restitution of conjual rights with all its legal trappings, obligations and duties, cannot enable a person to get a decree as prayed for in this suit.'
As it appears from the judgment of the learned single Judge, an attempt for reconciliation was made and the wife seemsto have agreed to return to the husband in case the husband was able to arrange a separate residence for the couple where she could live in peace in the company of the husband. The husband, however, pleaded inability even when several adjournments were granted and the learned single Judge, therefore, ultimately reversed the decree and dismissed the suit. The judgment is reported in AIR 1977 Orissa 132, Pramilabala v. Rabindranath. This appeal has been carried by the husband against the said reversing decree.
4. Counsel for the appellant wanted leave of the Court to raise a question which had not been mooted in the first appeal, namely, that the appeal was not maintainable in this Court. Reliance is placed on a Bench decision of this Court in the case of Nrusingh Charan Nayak v. Smt. Hemant Kumari Nayak, 45 Cut LT 558 : (AIR 1978 Orissa 163), to support that plea. In the instant case the suit was valued at Rs. 10/- and the first appeal was given the same valuation. The decree being of the learned Subordinate Judge, the appeal, it is contended, should have been filed in the District Court and not in this Court as per the provisions of the Bengal, Agra and Assam Civil Courts Act. A Bench of this Court in that case indicated that (at p. 166 of AIR) :
'Courts other than the principal Civil Court of original jurisdiction which by notification made under Section 3(b) of the Hindu Marriage Act are conferred with jurisdiction to entertain proceedings under the Act are not 'District Court proper' and irrespective of valuation an appeal would not He against decree of such Courts to the High Court;
The appellate forum has to be determined in accordance with the provisions of the Bengal, Agra and Assam Civil Courts Act. Where the dispute is valued up to Rs. 5,000/-, the appeal would lie to the District Judge when the impugned decree is of a Court other than the principal Civil Court of original jurisdiction.....'
In view of what has been stated by this Court in that case, undoubtedly the appeal in the instant case against the decree of the learned Subordinate Judge should have been laid before the District Court But such an objection having not been raised and the present appellant having allowed the appeal to be heard by the learned single Judge, we do not think itwould be appropriate to vacate the decree of the learned single Judge on that lone ground, We would like to point out that in the memorandum oi letters patent appeal no such contention has been faised and there is force in the contention of the counsel for the respondent that the learned single Judge was not a Court having no jurisdiction and the decree rendered in the first appeal cannot be held to be a nullity. We would not, therefore, entertain the argument of counsel for the appellant that the appellate decree should be vacated on the ground that the first appeal did not He to this Court.
5. There is clear evidence that appellant's mother was of a nagging type and she was in the habit of hurling abuses in filthy language frequently. 'Cruelty' has not been defined in the Hindu Marriage Act. Lord Stowell in Evans v. Evans, (1790) 1 Hag Con 35 observed :
'What is Cruelty In the present case it is hardly necessary for me to define it; because the facts here complained of are such as fall within the most restricted definition of cruelty; they affect not only the comfort, but they affect the health and even the life of the party. This, however, must be understood, that it is the duty of the Courts to keep the rule extremely strict. The causes must be grave and weighty, and such as to show an absolute impossibility that the duties of married life can be discharged. In a state of personal danger no duties can be discharged; for the duty of self-preservation must take place before the duties of marriage which are secondary both in commencement and obligation; but what falls short of this is with great caution to be admitted.'
With approval, Lord, Hobhouse pointed out in Russell v. Russell, 1897 AC 395 :
'Cruelty has never been confined to cases of personal danger but has been judged by a wider and more reasonable criterion expressed by Lord Stowell, namely, whether or no conjugal duties have become impossible between the litigant husband and wife,'
In the case of Ramesh Chandra Roy v. Smt. Nandita Roy. (1974) 1 Cut WR 593, one of us pointed out :
'What exactly would amount to cruelty in a given case would depend upon facts. But the usual test to be applied to a set of facts in a given case seems to be to find out whether the consortium has become absolutely impossible. When a man and a woman hitherto known or not known come to live together in a home as man and wife, a lot of adjustment be-comes necessary. The two may have different aptitudes, varying likes and dislikes, opposite interests, conflicting hobbies, incompatible outlook and non-coalescing temper. In some cases the two minds may soon have fusion and in others there would soon grow indifference, neglect and aversion. Every unpalatable behaviour of the other spouse is not necessarily 'Cruelty', physical or mental, so as to afford a ground under Section 10(1) of the Act. Most of the spouses -- particularly in this country --have no occasion to prepare for marital life. Marriage comes as an event -- like any other -- in life. Nature provides a lot of assistance to begin with physical attraction, biological need, love, etc. Sometimes, however, parties to a marriage soon forget that married life is a joint adventure and they are not prepared to 'bear and forbear', differences occur and if they are not resolved amicably, they give rise to misunderstandings, and, if either spouse lacks the force of character and the art of tact and patience, the misunderstandings aggravate, and occasionally aggravate to such an extent that the parties begin to feel hostile to each other. Their problems are converted from molehills into mountains. What was hitherto being yearningly looked for as a manifestation of love and overture now appears to be a challenge, a humiliating attack and an act of mental or physical torture. The relationship between the spouses is indeed very tender and had to be nourished with care, attention, love, understanding and mutual respect.''
Ordinarily every Court is expected to uphold the institution of marriage and since the wife is bound to live in the consortium of the husband during the subsistence of marriage, the wife should be asked to return to the husband. In the instant case, however, as has been found by the learned single Judge, the nagging was of habitual type and was too frequent to be tolerated. To live under constant dissatisfaction and mental torture is bound to give rise to a situation where it would become difficult to satisfy the test indicated by Lord Slowell in the decision referred to above. In the peculiar facts of this case, we are not in a position to take a view different from what has appealed to our learned brother.
We would accordingly affirm the decree of the learned single Judge that the plaintiff is not entitled to ask for restitution of conjugal rights.
6. Counsel for the appellant brought before us a changed circumstance, namely, that the appellant who is a teacher has now been transferred to a school of Raj Nilgiri located at a short distance from the family home. It is submitted that the husband can now stay on permanent basis at home and go to the school in the morning and return in the evening after working hours. It is again stated that the appellant's parents have become old and they require nursing and constant attention. The appellant, therefore, is not in a position to abandon them and stay away in a different establishment along with his wife. We, however, do not think, these are circumstances which have brought about such a change that would justify the variation of the judgment of the learned single Judge. We would, however, like to point out that there has been a finding that the husband is not guilty of any act of cruelty and, therefore, as and when the husband is in a position to create a situation where he can live separately from his parents --whether it is at the family home or at some other place, he is entitled to renew his prayer for restitution of conjugal rights unaffected by the present refusal to give him a decree.
7. The appeal fails and is dismissed. We direct that parties do bear their own costs throughout.
B.K. Ray, J.