1. This appeal by the husband is directed against an order, dated 16.8.1966. of Shri Radha Krishan Battas, Subordinate Judge, 1st Class, Rupar, by which the appellant's petition under Section 9 of the Hindu Marriage Act, 1955, (hereinafter referred to as 'the Act') for restitution of conjugal rights against the wife, was dismissed.
2. The appellant was married to the respondent on 29.3.1964. He is serving as a Physical Education Supervisor in a school under the control of the Fertilizer Corporation of India at Naya Nangal, Respondent Jagdish Kaur is the daughter of Dr. Ajmer Singh of Ludhiana. She was at all material times employed and posted as teachress in Government Middle posted as teachress in Government Middle School, Ludhiana. After the marriage, the parties went for a honeymoon tour to Simla, where they lived together for about 7 days. Thereafter, the couple went to the house of Dr. Ajmer Singh at Ludhiana. The respondent's mother however, advised them to go to Rupar, which they did on 7.4.1964. Thereafter the spouses went to their respective places of posting at Ludhiana and Nangal.
3. In the summer vacations of July-August, 1964, the wife came to her husband's house on 10.8.1964, and stayed with his parents at Rupar. The petitioner alleges that on 28.8.1964, she left the matrimonial home in his absence and had withdrawn herself from his society without reasonable excuse. It is also pleaded that she took along with her ornaments and clothes, valued at Rs.4,000/-.
4. On the preceding facts, the husband on 10.5.1965, made a petition for restitution of conjugal rights in the Court of Subordinate Judge, 1st Class, at Rupar.
5. In her written statement, the wife pleaded that she was given obnoxious, intolerable and inhuman treatment by her in-laws at Rupar. She was turned out of the petitioner's house on 28.8.1964, and was forcibly relieved of her ornaments and belongings. Her mother-in-law opposed the very idea of her going to Nangal to live with the petitioner. She was segregated from her husband and made to spend her holidays in Rupar without his company. The petitioner was too much under the influence of his parents and had no voice of his own. It is also stated that the petitioner's parents were dissatified with the dowry given by her parents, and, therefore, taunted and teased her. She also expressed her willingness to live with the petitioner at Nangal, but not with his parents at Rupar as she apprehended danger to her life.
6. In the replication, the petitioner alleged that he did not like his wife to serve as a mistress in a school. His mother also did not want the petitioner to continue in school service. It was denied that the dowry was ever a consideration for this marriage. It was added:-
'In fact, the respondent took this marriage just as a cover to get latitude to enjoy life in a different way other than the normal married life. She, in fact, is an instrument to be used by Mrs. Daljit Kaur Thandi, her previous Headmistress, Ludhiana. The correspondence between them is a clear proof of the fact that respondent does not want to lead the normal life of a married woman. ............... The respondent is living away from the petitioner out of her own pleasure. Still the petitioner is desirous of enjoying her company.'
7. The allegations of ill-treatment of the respondent were also denied. By way of additional plea, it was stated that the petitioner being the only son of his aged parents, was duty-bound to look after them, and the respondent had to share that moral obligation and responsibility of the petitioner. It was denied that there was any danger to the respondent from the parents of the petitioner.
8. The trial Court framed this issue:-
'Whether the respondent has withdrawn from the society of the petitioner without a reasonable excuse. O. A.'
9. This issue was decided against the petitioner. The trial Judge found that the petitioner himself was guilty of blame-worthy conduct because 'what he wants is a decree and not the girl'. He also observed that while in the witness-box , the petitioner could not conceal his aversion for her which was 'flowing out almost as a steam from a boiling kettle'. In the result, he dismissed the plaintiff's petition with costs.
10. Mr. Harnam Singh Wasu, the learned Counsel for the appellant has contended that the trial Court did not find that there was any dispute over the dowry or she had been forcibly deprived of her gold ornaments or that she was physically turned out of the house. Thus, says Mr. Wasu, the trial Court, in a way, found that several major allegations made by the respondent in her written statement or deposition at the trial were false. He has particularly drawn my attention to para 12 of the judgment of the trial Court, wherein it is observed that there are 'exaggerations in the version and counter-versions of the spouses', and that 'an impartial and 100% correct version cannot be expected from their friends', i.e. witnesses examined by them. It is emphasised that despite these findings and observations, the trial Judge has purely on fanciful grounds and certain unrecorded impressions about the demeanour of the petitioner-appellant, decided the issue against the petitioner.
11. Mr. Wasu has further criticised the construction placed by the trial Court on the letters, Exhibits P. 1 and P. 2, admittedly written by the respondent to one Mrs. Thandi. He has adverted me to certain sentences appearing in those letters, and vehemently urged that they show that the respondent had perverse, unnatural relations with Mrs. Thandi. These letters, says Mr. Wasu, also indicate that the respondent, in spite of the requests made by her mother-in-law to the contrary, left the matrimonial home in the absence of the husband for going to Ludhiana and living with Mrs. Thandi, who according to the respondent's own averment in these letters, was the only person in the world which the respondent could love. Thus, by implication, she had disclaimed and disowned any love for her husband. Mr. Wasu has further urged that her attitude in refusing to live with the appellant's parents, who have no issue other than the appellant, was highly unreasonable. All these circumstances, says Mr. Wasu, taken together, inescapably lead to the conclusion that the respondent left the matrimonial home of her unnatural evil pursuits in the company of Mrs. Thandi. In support of his contentions, the learned counsel has cited Gurdip Kaur v. Partap Singh 1967-69 Pun LR 603; Roshan Lal v. Basant Kumari, 1967 Pun LR 566; Gardner v. Gardner, (1947) 1 All ER 630 and Spicer v. Spicer, (1954) 3 All ER 208.
12. On the other hand, Dr. Anand has canvassed these points:-
(1) That there is abundant evidence, direct and circumstantial, to show that the husband has made this petition with an ulterior motive, viz., for laying the foundation of a future petition for divorce, and not with the bona fide object of resuming cohabitation.
(2) That the admitted or proved circumstances fully justify the conclusion arrived at by the trial Court that the husband had neglected the wife, and had deliberately kept her out of the matrimonial home, which, I the circumstances of the case, amounted to mental cruelty on the part of the husband.
(3) That the husband had the temerity to level, even in the grounds of appeal, imputation of unchastity, viz., of her having unnatural perverse sex relations with Mrs. Thandi -an imputation which is nothing short of mental torture and is by itself sufficient for dismissal of his petition.
(4) That even if it is held that she had not been able to prove with clarity the allegations, that she was forcibly turned out of the house and deprived of her gold ornaments, etc., then also the petitioner, who had to stand on his own legs, had failed to prove that the wife had withdrawn from his society without reasonable excuse.
13. In support of these contentions, reference has been made to Mst. Gurdev Kaur v. Sarwan Singh, AIR 1959 Punj 162; Smt. Mango v. Prem Chand, AIR 1962 All 447 and Munro v. Munro, (1950) 1 All ER 832.
14. In order to appreciate the points in controversy, it will be useful to set out the law on the point as contained in Section 9 of the Act. Sub-section (1) indicates that the petitioner seeking restitution of conjugal rights, in order to get a decree, has to prove two things: (I) that the respondent has withdrawn from the society of the petitioner, and (ii) that such withdrawal has been without reasonable excuse. The word 'excuse' appears to have been advisedly used. It is something less than 'justification', and something more than a mere whim, fad, or brain-wave of the respondent. It is a fact which has to be determined with reference to the respondent's state of mind in the particular circumstances of each case. The scope of the word 'excuse' is not restricted to the grounds which under sub-section (2) of the section can be taken in answer to a petition for restitution of conjugal rights, because in view of Sections 101, 102 and 103 of the Evidence Act, the burden of proving the aforesaid twin conditions in sub-section (1) rests on the petitioner. He has to succeed on the strength of his own case. He cannot take advantage of the weakness of the defence.
14-A. In this view, I am fortified by a decision of this Court in AIR 1959 Punj 162, wherein Grover, J., observed:-
' Although sub-section (2) of Section 9 of the Hindu Marriage Act confines pleas in defence only to those grounds which can be taken under Sections 10, 12, and 13 of the Act, sub-section (1) itself lays down certain conditions which must be fulfilled before a decree can be granted. It will have to be seen firstly whether the husband or wife, as the case may be, has withdrawn from the society of the other without reasonable cause. The second requirement is that the Court must be satisfied of the truth of the statements made in such a petition. Thirdly, there should be no legal ground why the relief should not be granted.
' The first requirement seems to incorporate the rule accepted in English Law that while granting restitution it has to be seen whether the respondent had a reasonable cause for leaving the petitioner and the Court has discretion to refuse relief if reasonable cause exists even in the absence of matrimonial offence. The test, however, as to what constitutes reasonable cause would vary with the circumstances of each case. It will have to be applied in the changed social conditions as they obtain today and not with the rigid background of the tenets of the old texts of Manu or other Hindu Law givers.'
15. Keeping in view the law on the point, as stated above, I pass on to discuss the evidence on record.
16. The most important piece of evidence, which according to Mr. Wasu, constitutes eloquent testimony of the unnatural perverse relations of the respondent with Mrs. Thandi, is letters, Exhibits P. 3 and P. 4 admittedly written by the respondent to her former Headmistress, Mrs. Thandi.
17. Before I pass on to consider these letters, it is important to bear in mind that these letters were intercepted by the appellant. It will not be out of place to mention here that the stability of a marriage rests on three pillars, namely, mutual trust, bilateral respect, and sympathetic understanding. Out of these three, which sustain a matrimonial home, 'trust' is by far the most important prop. 'To be trusted', sasys George Mac Donald, ' is a greater compliment than to be loved'. Trust begets trust; suspicion breeds suspicion. The interception of these letters by the needlessly suspicious husband consituted an act of vandalism against 'Trust', undermining the very foundation of the matrimonial relations. This is an important factor, which must affect the Court in its approach towards the appellant's case.
18. In order to appreciate the tenor, context, and true purport of these letters, it is necessary to reproduce their English rendering in extenso. Letter dated 20.8.1964, Exhibit P. 3, reads as follows:-
Why such cruelty towards me? Why did not you write to me? You take it lightly even though it may cost the other his life. I am weeping alone, lying in the drawing room. This apart, I am harassed by fever. Jiji, by God, fear is gripping me. The slightest noise from the street strikes terror in my heart. What to do! Where should I go! Just half an hour back, I felt as if Bibi (Jiji?) was speaking in the courtyard. Uf! I am bursting into cries. Have you no mercy on me! Ah! Even God has no mercy on me! Alas! I cannot write what is now in my mind, because you will feel it- my God! I could not get a wink of sleep even on the night of 21st August. Only at about 4 A.M. I dozed off to wake up from the nightmare at 7 A.M. chanting the name of God. I am still running temperature, I am feeling very bad. Anyway, let my health be indeed so bad, yet I wish you to be restored to health. After taking a hot bath, I quickly changed clothes, dressed my hair, took tea, came here and lid myself in the sofa, waiting for the postman till 10.30 A. M. The postman never came,. Then fear started gnawing me. I prayed with folded hands before the picture of Guru Nanak Sahib for a letter written by my Raja. The clock struck 11. Still no trace of the postman. Beji (mother-in-law) after feeling my pulsed asked me to go and lie down in the bed, but how could I like the bed! I said that I would go to bed after sometime. After 11, the postman came with two letters. The address on both of them was not in your hand. The heart then started pounding within me. I feared that these letters had been got written by someone else. What does this mean? Yet, Jiji, Ah! I opened the letter and read it. It was in your hand. For full 15 minutes, the heart did not stop hammering. I was sweating. I thanked God million times that he heard my prayers. He should continue to hear my prayers. Your letter of the 19th has been received today the 21st. What my condition was yesterday, I cannot say. Jiji, in my life, in reality, I have been able to love you only. On reading your letters of 20th, much happened to my heart. Even if you do not write, a single tear of yours help me a lot to reach the depths of your heart. I learnt all about your sighs and sorrows, though I may not utter a word to tell you all what I perceive, - or everything will be alright. Time will bring in its wake everything. That time is not far off. I believe. My presence by your side at this time was extremely necesssary. Do you know that I am controlling my feelings within my heart, and weighing it down, as it were, with a heavy stone. Do not think me alive. Though I am physically here, I am in heart by your side. I rarely speak. Beji is close to me. I spend the whole day, remembering you, also in my prayers. When I do not receive any letter from you, I become like an insane person. Look, Jiji! Have you been moved by my entreaties? Tell me the truth on oath. How much time do you spend on the bath-room? And what do you do there? Please do write it. What care do you take of my thing (keepsake)? Who sleeps by your side at night? Had I not received your letter today. I do not know what would have happened - only God knows!'
The second letter, dated 25.8.1964, Exhibit P. 4 reads as follows:-
Lot of love and then respects. Yesterday, I did not receive any letter from you. Yes, it had not to come. As I wrote to you, Beji taunted me several times that I had not received any letter on that day. I kept quiet. It will not come even today, because you did not receive any letter of mine on Monday. So, I will remain without it (dry) even today. On the 24th yesterday, you also so remained 'dry'. Yet today, you will get 'wet'.
'Jiji, really, I do not feel at home; what to do! I suffer from illusions as if somebody is calling me by my name. Sometimes, the heart fears, sometimes it gets nervous. I will try my best to come on Saturday. Jiji, when you were ill or when you used to change, you looked very lovely. Now you are receiving Redisul injections, and will get lovelier than before. Get stronger so that attack may be scared of you. You have told me, how much time you spend in the bath-room, and what do you do in the bath-room, and what do you do in the bathroom. Have you acceded to my request which I had made to you? You never accepted my advice when I used to be near you. Still, your obstinacy (courage) harms you. You think you have great strength in you. Please swear by me and tell the truth, how much have you remembered me? ..... Jiji, when I came to Rupar. Ah! How you were lying quiet eyes streaming tears. That picture is still screened before my eyes. Sometimes, I feel as if you are laughing and moving about in your courtyard and the drawing-room, and are not taking rest. You have informed me as to who sleeps by your side, and how much time during the day you spend alone. Jiji, when will I join you? I am waiting for that moment. Beji is cross with me since yesterday, and I, too, am angry. I sit idle (killing flies) under the fan in the day alone, in the drawing-room. ........ It is now quarter to 11. The postman has not come. I am having some headache and some pain in the eyes. I do not know , why? Jiji, write to me in detail as to your present state of health. For God's sake, for the present, you must take rest. Jiji, I am looking quite smart today. I wish, you were with me today. This is not a letter. I am just talking to you at random (nonsense) ......
'Tomorrow's post will certainly bring something. Every time I get so upset. Convey my Sat Sri Akal to mother and Bhabi Ji. Request Dr. Sahib on my behalf that he must give you Redisul daily.'
19. I wonder, how the aforesaid letters read as a whole, warrant even a reasonable conjecture that the respondent was indulging in lesbian practices between herself and Mrs. Thandi. No husband, save when he is unreasonably suspecting, can conjure up from these letters any conclusion of unnatural sex relations between the respondent and Mrs. Thandi.
20. The passages or the sentences which in the imagination of the appellant smack of such perverse relations were put to the respondent durign cross- examination in the witness box. She was asked to explain when she wrote in Exhibit P.3. 'What care are you taking of my thing, and who sleeps by your side? She explained that by 'my thing' . She meant her photograph, which had been givent o Mras. Thandi as a keepsake. The necessity of asking Mrs. Thandi about the time she spend in the bath-room and as to who used to sleep near her at night time, was used that Mrs. Thandi had suffered a heart stroke; she was a patient of heart trouble. This explanation fully fits in with the general tenor and context of these letters.
21. I entirely agree with the learned trial Judge that there is nothing sinister inthese letters, which would justify even a surmist that the wife was guilty of any marimonial offfence. The mere fact that in; one of these letters, she wrote that Mrs. Thandi was the only person to whom the respondent could love, cannot be construed as meaning that she had no love for her husband.
22. These letters clearly reveal the tormented mind of a love-straved, mentally tortured, and heldless wife, who has been depreied by her husband of his company and matrimonial bed. She has vividly painted her state of loneliness and segregation to which the husband and inlaws had reduced her. Shew has in these letters hinted and complained of gripping fears, harassing fever, fearsome lonliness , granwing mental pains, trying tribulations, and horrible helplessness. In the letter. Exhibit P. 3 she has expressed her inability to write and disclose everything about her miserable state and anguished mind,lest Mrs. Thandi who was sufferred from a heart ailment, should get worried.
23. It is true that these letters show that the respondent was very intimate with Mrs. Thandi but there is nothing unnatural about that intimacy. Mrs. Thandi was her former Headmistress, Respondent's devotion to Mrs. Thandi was wholly innocuous and natural, Counsel also laid stress on that part of the letter. Exhibit P. 4., wherein she informed Mrs. Thandi that she would try her best to reach Ludhiana on Saturday *(29 th August, 1964) and go straight to her. It is argued that this sentence conclusively shows that show had withdrawn herself from the society of the petitioner of her own accord, without any reasonable excuse.
24. I do not think that the mere fact that she was anxious to go Ludhiana and enquire about Mrs. Thandi's health, warrants this conclusion which the Counsel wants me to draw. It is not disputed that she was posted as a teachress at Ludhiana. It is, therefore, not unreasonable to presume that the fact of both the spouses being in the same profession, was one of the considerations of marriage. It is also not disputed that she was posted as a teachress at Ludhiana. It is also common ground that at the time o1991f the marriage also, she was in the Education Service of the State. The petitioner is also in the same profession. It is, therefore, not unreasonable to presume that the fact of both the spouses being in the same profession, was one of the considerations of marriage. It is also not disputed that she had come for the last time to her husband's parents during the summer vacation, and had to resume her post at Ludhiana on the 1st of September, 1964. Her informing Mrs. Thandi that she would be coming on Saturday, the 29th August, 1964, just at the end of the summer vacation, did not indicate an intention on her part to withdraw from the society of her husband, but only an intention to resume her official duties at the end of the vacation. But why did she leave one day earlier? This acceleration of her departure rather indicates that something happened subsequently to the writing of the letter. Exhibit P. 4, which hastened her departure. This something according to the sworn testimony of the respondent, was the mental and physical torture inflicted by her mother-in-law and her husband. It is also common ground that in the morning of 28th August, 1964, a telegram was sent to Dr. Ajmer Singh, father of the respondent, asking him to reach Rupar immediately. The respondent has sworn that she entreated her in-laws to wait for the arrival of her father, but they did not do so, but compelled her to leave the house immediately. It is in the evidence of Dr. Ajmer Singh how he reached the house of the petitioner and found that his daughter, the respondent, had already departed.
25. The observations made by the learned trial Judge with regard to the conduct and demeanour of the petitioner cannot be lightly ignored. It is true that he did not make a separate note at the time of recording the statement of the petitioner about his demeanour. But this demeanour is eloquently reflected in the sardonically curt statement of the petitioner. In examination-in-chief, he was volunteering statements.
26. He stated that he was prepared to keep the respondent if she either left service or got herself transferred to the station where the petitioner was posted. He further admitted that he did not try for her transfer from Ludhiana. He was questioned as to whether he had made any arrangement for taking her to Nangal. He bluntly replied that he had made no arrangements as none was required, He volunteered: 'She was free to go with me in a bus, I do not possess a car to take her in another way'. He further stated he used to take his meals at Nangal in a hotel. He admitted that after the departure of the respondent, he never went to Ludhiana, nor did he write any letter to her or her parents asking her to return to Rupar.
27. In the written statement, the respondent made an offer that she was prepared to go back and live with the petitioner at Nangal. The petitioner, however, did not want her to live with him at Nangal, but with his parents at Rupar. Her refusal to live with his parents at Rupar, away from him, cannot be said to be unreasonable in the circumstances of the case.
28. Dr. Ajmer Singh himself appeared in the witness-box and stated how his efforts as well as that of the respondent in persuading the petitioner to admit her to the matrimonial home proved abortive.
29. In view of this intransigment and unrelenting attitude of the petitioner and the circumstances of the case, the trial Court was justified in reaching the conclusion that the husband did no sincerely want to resume cohabitation, and that he had made this petition merely for the purpose of preparing ground for a future petition for divorce, I entirely agree with that finding. In short, the petitioner had failed to prove that the respondent had withdrawn from his society without reasonable excuse.
30. In the light of what has been said above, the appeal fails and is hereby dismissed with costs.
31. Appeal dismissed.