1. The petition giving rise to this appeal was instituted by Gurdip Singh (now the respondent) for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 (hereinafter called the Act) against Shrimati Surinder Kaur.
2. His case was that he was married to her on 10-12-1961 at Ludhiana and thereafter they had been living as husband and wife, and were residing as such at Chandigarh. On 31-12-1963, she left Chandigarh representing that she would be going to Ludhiana to see her mother. Thereafter, she did not return to his house. So, he made several efforts even through relations to secure her society but she declined to return to the house. Therefore, in the year 1964, he moved petition under Section 9 of the Act for restitution of conjugal rights against her, but the said petition was allowed to be dismissed for default as a compromise had been arrived at between them that she would be residing with him at Chandigarh. When she did not abide by the said compromise, he (the respondent) made efforts to secure her society and also approached relations for help in the matter. All these efforts failed and he moved the present petition and sought decree for restitution of conjugal rights on the averment that she (the appellant) had withdrawn from the society without reasonable excuse. The petition was contested by Shrimathi Surinder Kaur. She admitted the factum of marriage but controverted the other material allegations of Gaurdip Singh and pleaded that he showed no liking for her from the beginning that he had turned her out of his house at Chandigarh twice that he had also doubted her character and that he failed to pay the amount of Rs. 150/- which had been assessed as litigation expenses in the previous petition and, as such, the present petition was not maintainable. Hence, the case was tried on the following issues:--
1. Whether the respondent has withdrawn from the society of the petitioner without any reasonable excuse?
2. Whether the petition is not maintainable without payment of previous litigation expenses?
The learned District Judge, Chandigarh, decided issue No. 2 against Shrimathi Surrinder Kaur and finding issue No. 1 in the affirmative, he granted decree for restitution of conjugal rights in favour of Gurdip Singh. Aggrieved by the said decree, Shrimathi Surrinder Kaur has appealed. The evidence was read out to me and I heard the arguments and examined the record.
3. The facts, that the parties were married at Ludhiana on 10-12-1961, that they had been living as husband and wife thereafter, that they had last resided as such at Chandigarh till 31-12-1963 when the appellant went to Ludhiana, and has been residing with her widowed mother there since then, that she has been in service as teachers in Kaligidhar Khalsa Higher Secondary School, Ludhiana, since 1964, that Hira Singh is the real uncle of the appellant and he resides at Delhi and that, at least once he had called the parties to Delhi for resolving their differences but he could not succeed therein, are amply borne bout by the evidence present on record and were not disputed. The learned counsel for the appellant challenged the decree with the contentions that the respondent had been guilty of cruelty which compelled her (the appellant) to seek shelter in the house of her mother, that there had been delay in the making of the petition and that the motive of the respondent in seeking restitution of conjugal rights was ulterior, as he wanted to divorce her and since the previous petition should be deemed to be pending, the present petition was not competent.
'Cruelty', whether physical, legal or mental, is good defence in a petition, moved for restitution of conjugal rights. The question for determination is as to whether it is the cruelty which preceded the withdrawal of one spouse from the society of the other which is of importance or the cruelty subsequent to such withdrawal can be of any relevance. It is clear from section 9 of the Act that it is not the mere withdrawal of one spouse from the society of the other, that could entitled the latter to seek decree for restitution of conjugal rights against the former. The deserted spouse has further to show that the withdrawal from his or her society by the deserting spouse is without reasonable excuse. Therefore, if my reading of section 9 of the Act is correct, I feel that it is the cruelty which had been shown by the deserted spouse towards the deserting spouse before the withdrawal of the latter from the society of the former, which is of importance. No human being, when at fault, would be bold enough to admit his default. Having regard to human nature, as it is, if unfortunately matrimonial relations are ruptured between husband and wife, both of them would be prone to invent versions and would not hesitate to throw blame for the estrangement on each other. The said estrangement is further hound to give rise to various suspicions in their minds against each other. Therefore, the conduct of the husband or wife, subsequent to the withdrawal by one from the society of the other, may at the most be relevant evidence to indicate their intentions or may be taken into consideration for appreciation of the evidence led in proof of the excuse or excuses advanced for the said withdrawal, but the same, in my opinion, cannot be used to justify the said withdrawal.
According to the Hindu law, marriage is a holy union. The relationship between husband and wife imposes upon each of them certain marital duties and gives each of them certain legal marital rights. The marriage imposes a duty on the husband to protect his wife, to give her a home to provide her with comforts and necessities of life within his means and to treat her nicely. It enjoins on the wife the duty of attendance, obedience to and veneration for the husband and to live with him wherever he may choose to reside. In the case in hand, the respondent was and is employed at Chandigarh. Therefore, by entering into marriage with him, the appellant had placed herself under obligation to reside with him at Chandigarh. As the evidence stands, she did come to Chandigarh and resided with him till 31-12-1963. The respondent stated and the appellant admitted, that in the year 1963 she got herself employed as teachers in the Khalsa Model School, Chandigarh, Certificate Exhibit P-2, issued by the Lady Superintendent of that school, points out that she had worked as J. B. T. teacher from 2-5-1963 to 22-5-1963 in the said institution. Thereafter, she resigned from that institution and joined or rejoined as teacheress in Kalgidhar Khalsa Higher Secondary School, Ludhiana. The respondent maintained that she had resigned from the Khalsa Model School, Chandigarh, without his consent and had gone back to Ludhiana where she had been working as teacheress in the School referred above. Now, the circumstance of the appellant's resigning from the Khalsa Model School, Chandigarh, and joining service as teacheress in Kalagidhar Khalsa Higher Secondary School, Ludhiana, had undoubtedly placed her in a situation which has rendered her unable to discharge the marital duties, imposed upon her by marriage, towards the respondent, Judgments delivered in Gaya Prasad v. Mst. Bhagwati, AIR 1966 Madh Pra 212, and Smt. Tirath Kaur v. Kirpal Singh AIR 1964 Punj 28. support the view that where a wife accepts service without husband's consent at a place different from his home, it would be reasonable to infer that she has withdrawn, without reasonable excuse, from his society.
4. As indicated above, the respondent has sworn that the appellant had resigned from the post held by her in the Khalsa Model School, Chandigarh, and had joined service in Kalgidhar Khalsa Higher Secondary School, Ludhiana against his will. The appellant, however, maintained that she had been given beatings and had been turned out by the respondent from his house twice during the period she remained in service at Chandigarh and she had to pass nights in the house of one Dayal Singh, located at Bajwara. The said Dayal Singh was not examined by the appellant for reasons best known to her. The presumption therefore, is that he was not prepared to give statement favourable to her. Now, if her aforesaid statement is read in the light of the contents of Exhibit P-2, it would mean that she was beaten and was turned out of the house by the respondent during the period from 2-5-1963 to 22-5-1963. But then, as the evidence stands, she had lived with the respondent till 31-12-1963 i.e. sometime even after the alleged beatings given to her. Letters Exhibits P-9, P-10 and P-11, which were written by the appellant to the respondent on 26-7-1963, 19-8-1963 and 22-2-1964, point out that her relations with him had been cordial and she did not make any reference about the aforesaid alleged beatings given to her by him in any one of the said letters. So, the aforesaid circumstances and evidence belie the assertion of the appellant that she had been given beating or turned out from the house, by the respondent.
Now, when the appellant was not returning to the house of the respondent and she had joined service at Ludhiana, he could think of approaching the Court for legal remedy and to make inquiry about certain facts as well as about any suspicion that might have arisen in his mind. Therefore, letter Exhibit R/1, written by him on 9-4-1964, to the Principal, Khalsa Girls Higher Secondary School, Ludhiana, to inquire about the date of birth and the date of appointment of the appellant as he intended to produce the same in support of application for divorce, and further asking her to inform him abut her pay and general reputation, reads consistent with the circumstances and the situation in which he was then placed. It is important to note that he did not state in the said letter Exhibit R/1 that he doubted the chastity of the appellant. Since the appellant had deserted him and he wanted her society, it appears that he had written the said letter to know about the matters mentioned therein, thinking that he would require the same for making the application which he could have wrongly described as that of divorce. Having failed to secure the society of the appellant, the respondent made petition under Section 9 of the Act on 11-11-1964, Copy Exhibit R/3 of the order dated 21-7-1965, passed in that petition, shows that he was required to pay Rs. 150/- as expenses of the litigation to the appellant. The appellant admitted in her statement that the said petition was dismissed since the aforesaid expenses of litigation had not been paid to her. The respondent, however maintained that he did not pursue the said petition because of the compromise and the assurances given by the relation of the appellant that she would be returning to his house. The respondent further stated that he had been making efforts, by approaching the appellant and her mother at Ludhiana and also by writing and approaching Shri Hira Singh at Delhi, for obtaining the society of the appellant during the years 1966, 1967, 1968 and in the beginning of the year 1969. The appellant admitted, during cross-examination, that Shri Hira Singh had called her as well as the respondent to Delhi but their differences could not be resolved. There is sufficient evidence, which will be discussed hereunder, which supports the assertion of the respondent that he had been making efforts to secure the society of the appellant during the aforesaid years. The appellant, when asked as to whether she was prepared to live with the respondent, during cross-examination, stated categorically that she was prepared to go with him under any circumstances and under any condition of course indicating that she apprehended danger from him. The explanation that she apprehends danger from the respondent is not, however, borne out by the evidence or circumstances of the case.
5. The first act of cruelty, alleged by the appellant that she had been given beatings and turned out from his house by the respondent twice at Chandigarh, as indicated above, has not been substantiated as the best evidence that could have been available to the appellant from Dayal Singh, has not been produced. The second act of cruelty stated by the appellant, and pointed out by copy Exhibit R/4. is that on 24-4-1965 when the appellant had come to the Court at Chandigarh to appear in the previous petition, moved under Section 9 of the Act by the respondent, he (the respondent) had uttered one or two abuses to her. No question, suggesting that the respondent had addressed any abuses to the appellant or that he had held out any threat to her when she appeared in the aforesaid petition, had been addressed to him during cross-examination. Even otherwise, if it is taken that the respondent had spoken some harsh words to the appellant, when she had come to Chandigarh in the previous petition moved by him, it would not necessarily constitute cruelty because at that time the parties were facing litigation and the appellant might have spoken the same with a view to bring her round. The third act of cruelty, stated by the appellant and her witness, Shrimathi Gurnam Kaur R. W. 2. and Supported by report Exhibit R/5 made by the appellant at Police Station Ludhiana is that on 23-6-1969 the respondent, along with his brother and some person of bad character, had approached the appellant at Ludhiana and held out threat of murder to her and even gave beating to her. The respondent however admitted that he gone with his brother to Ludhiana on 23-6-1969 to inquire from the appellant as to what her future programme was, and he denied emphatically the allegation that he had given any beating to the appellant on that date. Now, when the respondent had been making all efforts to secure the society of the appellant, therefore, it sounds probable that he might have gone to Ludhiana with his brother to prevail upon the appellant to return to his house. The possibility that the appellant took that opportunity and made report to the police with a view to deter the respondent; cannot be excluded.
True, Piara singh R. W. 1 stated that in the month of April, 1964, the respondent had quarreled with the appellant and had asked her to put off the bangles which he had given to her at the time of marriage, and that he had then pacified him. Shrimati Gurnam Kaur R. W. 2 had also stated that the respondent had told her that the appellant was not to his liking. Parmanand R. W. 3 maintained that in the year 1964 the respondent had come to his house and told him that the appellant and her mother were not good and he wanted to mend them through the police and that he showed photograph of some girl saying that he intended to marry that girl and wanted to get rid of the appellant and that in October, 1969, I.e., after institution of the present petition, the respondent stated in a meeting that he wanted the appellant to execute deed of divorce and he shouted, after the meeting that he would forcibly abduct the appellant, Shrimati Jagir Kaur R. W. 4 stated that the respondent had been coming to Kalgidhar Khalsa Higher Secondary School, Ludhiana. and had been addressing abuses to the appellant. But, surprisingly no question, suggesting that the respondent had quarrelled with the appellant or had asked her to return the bangles to him, in presence of Piara Singh, or that respondent had ever spoken to Shrimati Gurnam Kaur that the appellant was not to his liking or that he had ever spoken to Parmanand that he would mend the appellant andher mother through the police or that he had shown photograph of any girl to him, much less saying that he would marry her, or that he had ever asked the appellant in any meeting to execute deed of divorce or that he had threatened to abduct her forcibly or that he had uttered abuses to the appillant in presence of Shrimati Jagir Kaur, had been addressed to the respondent during cross-examination. No explanation for omission to cross-examine him on these matters is forthcoming. Therefore, the statements of the aforesaid witnesses for the appellant, on these matters, are creation of afterthought and cannot be accepted. It, thus, follows that neither of the alleged acts of cruelty had been substantiated by any cogent evidence and then the same may not. in fact. be termed as cruelty but would read consistent with the version of the respondent that he had been making sincere efforts to secure the society of the appellant. The said alleged acts of cruelty again relate to the period, subsequent to the withdrawal of the appellant from the society of the respondent. Therefore, it cannot be maintained that her withdrawal from the society of the respondent was on account of the said alleged acts of cruelty. So, I. having given my anxious thought to the entire evidence and circumstances of the case and the arguments advanced by the learned counsel, find myself in agreement with the learned District Judge that the plea of cruelty is not substantiated and she was withdrawn from the society of the respondent without reasonable excuse. As such, his finding on issue No. 1 is correct and the same is affirmed.
6. True, the appellant had withdrawn from the society of the respondent on 31-12-1963. Then he made petition for restitution of conjugal rights on 11-11-1964. So, there was no delay in making that petition. The said petition was dismissed in 1965, as admitted by the appellant, on account of non-payment of litigation expenses. The respondent, however, maintained that the said petition was allowed to go in default because of the compromise and the assurances held out by the relations of the appellant, that she would be returning to his house. In the years 1966, 1967 and 1968, he had made efforts through her relations, especially through Shri Hira Singh to resolve the differences and to secure her society. Having regard to the conditions and notions of Hindu Society, it cannot be said to be unusual for the respondent to make efforts, during the said years, for securing her society. It appears that when he failed to secure her society, even through the good offices of her uncle Hira Singh, he was forced to approach the court for restitution of conjugal rights. So, in the circumstances of the case, I do not think that there had been delay, much less of such a nature, as to decline the relief to the respondent to which he is entitled on account of withdrawal of the appellant from his society without reasonable excuse.
The facts of the cases Gurcharan Singh v. Waryam Kaur (1960)62 Punj LR 127=(AIR 1960 Punj 422) and Teja Singh v. Sarjit Kaur, AIR 1962 Punj 195, relied upon by the learned counsel for the appellant for contending that the present petition be dismissed on account of delay were different. In Gurcharan Singh's case (supra) the facts were that a son had been born to Shrimati Waryam Kaur from him and he did not care either to send any money for maintenance to Shrimati Waryam Kaur and he did not take interest in her or even in the child. Further, Shrimathi Waryam Kaur had applied for maintenance allowance against him under section 488, Criminal Procedure Code, on 16-7-1967 and it was then on the next day i.e., on 17-7-1967. that Gurcharan Singh had made petition for restitution of conjugal rights and then there was evidence that he had attributed immorality and infidelity to her. In Teja Singh's case (supra), it was proved that he had neglected her for 6 or 7 years, and did not write any letter to her and did not maintain her. It was after she had obtained orders from the criminal Court for maintenance under section 488, Criminal P. C. that Teja Singh had applied for restitution of conjugal rights. It was under those circumstances that it was held that there was unnecessary and improper delay for institution of proceedings for restitution of conjugal rights. But, in the instant case, there is nothing on the record to show that the appellant had every applied or had any intention to apply for maintenance allowance under section 488 Criminal P. C.
7. In the circumstances and the evidence, discussed above it seems that the respondent had been making all efforts, which he could for securing the society of the appellant and it was, when he failed and could not see that wise counsel would ever prevail with the appellant that he made petition under appellant, that he made petition under section 9 of the Act. There is nothing on the record to show that the appellant had ever cared to repair the matrimonial rupture, and she had been adamant to live at Ludhiana without caring to discharge the marital duties which had been imposed upon her. I therefore, find that the petition had been moved bona fide by the respondent and he has no ulterior motive therein.
8. As pointed out above, the appellant admitted that the previous petition had been dismissed though, according her on account of non-payment of litigation expenses. In that view of the matter, it cannot be said that the previous petition is pending. Therefore, the contention that this petition is not competent because of the previous petition is untenable. I have not been referred to any law or authority to show that because the litigation expenses assessed in the previous petition had not been paid to the appellant, he could not maintain this petition. The appellant could recover the litigation expenses, assessed in the previous petition, by taking out execution of the relevant order passed by the Court. So, I hold that the finding recorded by the learned District Judge on issue No. 2 is also correct and the same is affirmed. In the circumstances of the case, it cannot be maintained that the respondent was guilty of any default, much less that he has taken advantage of his wrong or that there is any ground for withholding the relief to which he is entitled.
9. In the result, I find that there is no force in the contentions advanced or in the attack directed, by the learned counsel for the appellant against the decree granted by the learned District Judge. So, the same are overruled. The aforesaid decree was rightly passed and there is no merit in this appeal.
10. Consequently, I, maintaining the decree passed by the learned District Judge dismiss this appeal, but without any order as to costs. Before parting with the case, I wish to record note of advice for the appellant that she should try to restore the matrimonial happiness by returning to the house of the respondent, rather than to mar her peace and also that of the respondent by adopting adamant attitude in remaining away from him.
11. Appeal dismissed.