1. Teja Singh appellant applied under section 9 of the Hindu Marriage Act (No. 25 of 1955), for restitution of conjugal rights alleging that he was married to the respondent Surjit Kaur about 13 years back and they lived together as husband and wife for about 3 years. The respondent thereafter left him of her own accord and started living separately in spite of his repeated requests. On the other hand the respondent filed an application under section 488, Criminal Procedure Code, in a Court at Ludhiana and obtained an order of maintenance at the rate of Rs. 30/- per mensem against the appellant. The application the marriage but averred that she was maltreated by the appellant at the instance of his brother's wife.
2. As a result of that he turned her out of his house after giving her beating and never took care of her thereafter. She denied that the appellant ever made any attempt to bring her back, but asserted that her father along with some respectables of the village unsuccessfully approached the appellant with a request that the should take her back to his house. She also pleaded that she had been totally neglected by the appellant for a period of six or seven years and it was because of this that she had to make an application under section 488, Criminal Procedure Code, against the appellant. Her contention was that this application was made by the appellant only to avoid his liability to pay the maintenance fixed by the Court. On the pleadings of the parties the following issues were from.
1. Whether the respondent has withdrawn from the society of the society of the petitioner without sufficient cause?
2. Whether the applicant has been guilty of cruelty towards the respondent? If so, its effect?
3. What is the effect of the petition having been made after the expiry of 6 or 7 years from the date of the respondent from the society of the petitioner?
4. Whether the applicant deserted the respondent for more than 2 years before the making of his application?
After recording evidence Shri Radha Krishan, Sub-Judge 1st class, Ludhiana found issues Nos. 1, 2 and 3 against the appellant and issue No. 4 in favour of the respondent, and dismissed the application vide his order dated the 13th October, 1960. Feeling aggrieved against that order Teja Singh has approached this Court in appeal.
(2) The case was argued at considerable length principally on the point whether the respondent had reasonable excuse or cause to withdraw from the society of her husband and leave his house, and whether Teja Singh had deserted her for a continuous period of not less than two years. What is meant by desertion has been fully explained in Bininchandra Shah v. Prabhavati (S) AIR 1957 SC 176, where their Lordships of the Supreme Court observed that
'for the offence of desertion two essential conditions must be there, namely, (1) the factum of separation and (20 the intention to bring cohabitation permanently to an end. Similarly, two elements are essential so far as the deserted spouse is concerned (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. Desertion is a matter of inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation.'
In Gurdev Kaur v. Sarwan Singh, AIR 1956 Punj 162, it was held that
'if a wife has been found entitled to separate maintenance on the ground that she has justifiable cause for living separately that right cannot be defeated by the husband subsequently filing a suit for restitution under section 9 of the Hindu Marriage Act and by showing that the wife cannot establish any of the grounds covered by sections 10, 12 and 13 of the said Act.'
It was also observed by Grover, J. in that case that
'where the husband is guilty of conduct which falls short of legal cruelty in the sense that it is not cruelty of the kind mentioned in Section 10(1)(b) of the Hindu Marriage Act, but his misbehavior or misconduct is such that the wife is fully justified in separating himself from him, the husband cannot succeed in his petition under section 9 as is will not be possible for the Court to say that the wife has withdrawn herself from his society without reasonable excuse.'
It was also observed therein that every case is to be decided according to its own facts and circumstances. Certain acts in a particular case may not be held to be sufficient for a party to leave his or her spouse, but in another case those acts may warrant a sufficient cause. Applying the above tests to the facts of the present case we find that the respondent left the appellant's house 6 or 7 years back and since then she has been living at her parent's house. During all this period Teja Singh neither wrote to her nor maintained her, and thus neglected her. The witnesses produced by him are definitely interested. Their evidence has been discussed in detail and rightly rejected by the court below.
On the other hand the evidence led by the respondent was relied upon rightly after giving adequate reasons. The learned trial Judge was further right in relying on certain circumstances which supported the contention of the respondent. It is not denied that after having been neglected by her husband for a pretty long time she was forced to approach the criminal Court under Section 488, Criminal Procedure Code, and obtained an order of maintenance. Against that order Teja Singh filed a revision in the Court of Session, but the same was dismissed. She has in her own statement and in the evidence of the other witnesses given reasons for her leaving the house of her husband.
It is well-known that a wife, and particularly a Hindu wife, would not leave her husband's shelter unless she is forced by the circumstances. The counsel for the appellant very vehemently argued that the respondent is a hot-heard young woman who suspected her husband of carrying on with his sister-in-law and thus left his house. The fault was therefore, on her side. It is difficult to say, as the lower Court has remarked whether the allegation is true or otherwise, but when the husband and his witnesses tried to conceal that Teja Singh had been living at the house of his sister-in-law for the last 6 or 7 years, one naturally tries to suspect that there may be some such connection between them. If he was honest about it, he himself and his witnesses should have frankly admitted that he lived at this sister;-in;-law's house. Under these circumstances, the respondent may only have reasonable suspicion that there was some connection between her husband and his sister-in-law, and even if she left him for that reason she would be justified.
(3) We find that the respondent left Teja Singh's house quite a few years back, but he did not consider it necessary even to give her notice to come back to him or make an application under Section 9 of the Act as has been done now but waited till she obtained an order from the criminal Court for maintenance against him. There has, therefor, been unnecessary and improper delay in instituting these proceedings and under the provisions of S. 23 of the Act such a delayed application merits dismissal. It appears that the only intention of the appellant is to somehow or other escape the liability imposed upon him under S. 488, Criminal P. C. as mentioned above.
(4) For the reasons given above, I see no force in this appeal and dismiss the same with costs.
(5) Appeal dismissed.