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Shanti Devi Vs. Balbir Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtDelhi High Court
Decided On
Case NumberL.P.A. No. 77 of 1970
Judge
Reported inAIR1971Delhi294
ActsHindu Marriage Act, 1955 - Sections 9(1) and 9(2)
AppellantShanti Devi
RespondentBalbir Singh and anr.
Appellant Advocate R.L. Aggarwal,; A.L. Joshi and; Arun Kumar, Advs
Respondent AdvocateParty in person
Cases ReferredSadhu Singh Balwant Singh v. Smt. Jagdish Kaur Sadhu Singh
Excerpt:
.....was constantly abused and beaten and her husband had the courage to do so in the presence of the wife's father who too was insulted and abused in the presence of the appellant : ; that the court is fully justified in coming to the conclusion that the appellant was being tortured and cruelty was being practiced on her. - section 13: [altamas kabir & cyriac joseph,jj] custody of child - welfare of child vis--vis comity of courts - the minor girl child of 3 1/2 years was brought to india by her mother. the minor girl was a citizen of u.k. being born in u.k. her parents had set up their matrimonial home in u.k. and had acquired status of permanent residents of u.k. the child with her mother was supposed to return to u.k. but the mother cancelled her tickets and remained behind in india...........is constantly abused and beaten and her husband has the courage to do so in the presence of wife's father who too is insulted and abused in the presence of the girl, the learned trial judge appears to us to have been fully justified in coming to the conclusion that the appellant was being tortured and cruelty was being practiced on her. the appellant has also stated that respondent no. 1 was threatening to take away her life by administering pills which are ordinarily used for developing photographs, although there is no other evidence on that point. if the relations between the husband and wife have reached such a stage that the husband was going about telling everybody who came to see him on her behalf that he would let her go only if she gave a deed of divorce, the possibility.....
Judgment:

Hardayal Hardy, J.

1. This is an appeal against the judgment of V.S. Deshpande, J., whereby the judgment of an Additional District Judge dismissing the application for restitution of conjugal rights under Section 9 of the Hindu Marriage Act 25 of 1955 filed by Balbir Singh Gupta, respondent No.1, was set aside and a decree for restitution of conjugal rights was passed in his favor against Shirmati Shanti Devi Who has appealed against the same and is appellant before us. The appellant, Smt. Shanti Devi and her husband Shri Balbir Singh Gupta are Hindus by religion and the marriage between the two was solemnised at Hissar on 16-2-1955 according to Hindu rites. It appears that before the appellant's marriage, her elder sister was married to respondent No.1 and she died about three months before this marriage. There was a child from the first marriage who was however died since then. The parties lived together and a daughter, who is now living with the appellant, was born to them. After their marriage they resided together at Viney marriage they resided together at Viney Nagar, New Delhi, till on 11-5-1960 in pursuance of a warrant issued under Section 100, Criminal Procedure Code by a New Delhi Magistrate, the appellant was recovered from the house of respondent No.1 in Viney Nagar.

2. On 25-7-1960 the present application for restitution of conjugal rights was filed by respondent No.1 on the ground that the appellant had, without reasonable excuse, withdrawn from his society at the instigation of her father, who was imp leaded as respondent No.2 in the said application and has also been made to join in this appeal as respondent No.2

3. The application was resisted by the appellant and her father who had put in a joint written statement wherein it was alleged that respondent No.1 had started paying attention to a girl in Viney Nagar whom he wanted to marry and adopted all sorts of means to torture the appellant and practiced cruelty on her. A stage was reached when respondent No.1 even threatened to do away with her life. She sent urgent messages and letters to her father to get her out of the control and confinement of respondent No. 1 and that is why the Magistrate was moved for issuing a warrant under S. 100, Cr. P.C.

4. Upon the pleadings of the parties the following two issues were framed by Shri Manmohan Singh Gujarat (now a Judge of the Punjab and Haryana High Court) and the case was eventualy tried by Shri Des Raj Dhameja, Addl. District Judge Delhi:-

1. Whether the petitioner is not entitled to a decree for restitution of conjugal rights?

2. Relief.

5. The trial Judge on an examination of the evidence (documentary as well as oral) led by the parties came to the conclusion that the appellant had been maltreated and that there was sufficient material to show that she had been detained by respondent No.1 and had also been given beating. The learned trial Judge was thereforee of the opinion that there was reasonable excuse for the appellant to withdraw from the society of respondent No. 1 within the meaning of S. 9(1) of the Act and as such the said respondent was not entitled to a decree for restitution of conjugal rights being passed in his favor.

6. On appeal the learned Single Judge has taken the view that on the evidence on record it was not sufficient to hold that there was any reasonable excuse for the withdrawal of the appellant from the society of her husband. In coming to that conclusion it has also been held that the statements made by respondent No. 1 were true while the statement made by the appellant had not been proved to be true. It has also been held that there was no matrimonial offence and no ground has been proved by the appellant which would have justified the grant of judicial separation, nullity of marriage or divorce. On this view of the matter, the learned Single Judge has up-set the judgment of the trial court and has granted a decree for restitution of conjugal rights to respondent No.1 against his wife.

7. It appears to us that while framing the questions that fell for decisions in this case the learned Single Judge was of the view that the following questions arose for his decision : -

(1) Whether the wife withdrew from the society of the husband without reasonable excuse within the meaning of Section 9(1) of the Act; or

(2) Whether the conduct of the husband toward the wife amounted to such cruelty as to cause a reasonable apprehension in her mind that it would be harmful or injurious for her to live with the husband within the meaning of Section 9(2) of the Act.

8. The learned Single Judge also appears to have been of the view that the courts in India have followed the rule laid down in Russel v. Russel,(1895 Probate 315) although S. 9, of the Hindu Marriage Act, 1955 reproduced Sections 32 and 33 of the Divorce Act, 1869 which were based on the law as practiced in the English ecclesiastical courts prior to 1884 and laid down a rule different from what was said in the case of Russel v. Russel.

9. The question as to whether Section 9 of the Hindu Marriage Act, 1955 re-enacted the principles underlying the law as practiced in the English ecclesiastical courts prior to 1884 for the simple reasons that the marriage under the said Act was more of a sacrament than a contract, is no longer open to doubt as on a matter of construction of Section 9 of the Act, it has been held in a series of cases decided by almost all the High Courts in India except the High Court of Andhra Pradesh in Annapurnamma v. Appa Rao : AIR1963AP312 that sub-section (1) of Section 9 itself lays down certain conditions which must be fulfillled by the husband or wife before a decree for restitution of conjugal rights can be granted to him or her as the case may be. 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 a reasonable excuse. The second requirement is that the court must be satisfied about the truth of the statements made in be no legal ground why the relief should not be granted. In a case of this nature the petition shall fail not because of any defense set up by the opposite party under Section 9(2), but it cannot succeed on account of nonfulfilment of one of the essential ingredients of sub-section (1) of Section 9.

10. This view has the support of a decision of Grover, J. (as he then was) in Mst. Gurdev Kaur v. Sarwan Singh , of Inder Dev Dua, J. (as he then was) in Gurcharan Singh v. Smt. Waryam Kaur, AIR 1960 Punj 422 and of a Division Bench of Madhya Pradesh High Court in Alopbai v. Ramphal Kunjilal : AIR1962MP211 . The same view was also taken by the Indore Bench of the same High Court in Smt. Sau Shakuntalabai v. Baburao Daduji Mandilik : AIR1963MP10 . Two Judges of Allahabad High Court in Smt. Mango v. Prem Chand : AIR1962All447 and Jagdish Lal v. Smt. Shyama Madan : AIR1966All150 have also taken the same view. One of us (Hady. J.) in Ram Kali v. Same Singh 1969 Del Lt 519 also took the same view. In Shrimati Santosh Kaur v. Mehar Singh (1966) 68 Pun Lr 713 P.C. Pandit, J. of the Punjab High Court was also of the same view. R.S. Sarkaria, J., of the Punjab and Haryana High Court also took the same view in Sadhu Singh Balwant Singh v. Smt. Jagdish Kaur Sadhu Singh, and 'execuse' in sub-section (1) of Section 9 is not restricted to the grounds which under sub-section (2) of that Section can be taken in answer to a petition for restitution of conjugal rights.

11. In this view of the matter, the observations made by the learned Single Judge which may tend to cast some doubt on the meaning of Section 9 of the Hindu Marriage Act, 1955 and to restrict the scope of the defense to what is laid down in sub-section (2) of the said section will have to be overruled and the law is as has been stated by Gover, J. in Mst. Gurdev Kaur's case which was followed by one of us in Ram Kali's case, 1969 Delhi Lt 519.

12. The question thereforee has to be viewed in the light of the first question set out by the learned Single Judge and it may not be necessary to have recourse to the second question which has been set out as an alternative to the first question, because in a defense to an application for restitution of conjugal rights, cruelty is not the only defense that the wife may set us against the husband. The words 'reasonable excuse' are much wider in scope that what is prescribed in subsection (2) of Section 9 and which the learned Single Judge has described as a matrimonial offence. The leaned Sing Judge appears to us to be perfectly right, in spite of his earlier reaction, to the true meaning of Section 9 of the Act in stating that for the success of his petition, respondent No.1 had to prove three things, namely : (i) the absence of a reasonable excuse for the withdrawal of the appellant from his society; (ii) the absence of any legal ground why the petition should not be granted; and (iii) the truth of the statements contained in the petition.

13. This being the legal position the pleadings and evidence on record have to be scrutinised to find out whether such 'reasonable excuse' is wanting in this case to justify the withdrawal of the appellant from the society of her husband. In the present case, the burden of proving want of such reasonable excuse obviously lay on respondent No. 1 who was the petitioner. The grounds pleaded by the appellant in her reply to the husband's petition were as follows : -

'(1). The husband was paying his attention and he is even now doing so to a girl in Vinay Nagar;

(2). The husband tortured her and practiced cruelty on her and intended to do away with her life;

(3). He beat her;

(4). He snatched all her belongings;

(5). He would not allow her to move out of the house.'

These grounds were elaborated by her in the statement of better particulars which she supplied on the application of her husband and then the parties led evidence to show the existence of any of these grounds so as to constitute reasonable excuse for withdrawal of the appellant from the society of her husband.

14. On behalf of the appellant evidence was led to show that the husband was paying attention to a girl named Usha Kiran whose photograph was shown by the appellant to Om Parkash Gupta. Om Parkash Gupta (R. W. 4) stated that he saw a girl moving about in the company of the husband and that the girl as well as the husband were both working in the Reserve Bank of India. The appellant (R. W. 5) stated that it was Om Parkash who had told her that the place where the girl was residing was Daryaganj while the husband himself was living in Viney Nagar. According to the learned Single Judge Daryaganj being far away from Viney Nagar, it is most unlikely that the persons residing far away from each other would be seen in the company of each other. According to the learned Judge, in a city like Delhi, thousands of persons work in offices which employ both men and women and if a man and a woman working in an office are merely seen together in each other's company, the Explanationn may be that they had either casually met each other or that they were either going home from the office or were going to the office together.

15. The observations of the learned Single Judge have much to commend themselves to us. Merely because two persons, on a male and the other a female, who are working in the same office, are seen together in each other's company will not by itself mean anything. The so-called photo has not been produced, the Explanationn for the omission being that it had been left behind in her box when she was asked to leave her husband's house pursuant to a warrant of recovery under Section 100, Criminal Procedure Code does not seem to be correct. It may be that the appellant suspected that some other girl was responsible for her troubles. The connection of respondent No.1 with some other girl could merely provide the motive for the ill-treatment meted out to her and is by itself not pleaded as a defense. That circumstance will thereforee have to be excluded from consideration.

16. The next point urged on behalf of the appellant is that she was being ill-treated by respondent No. 1 and that he intended to do away with her life. It is true that the appellant has not produced any medical evidence of neighbours to show that she was being beaten or that respondent No. 1 intended to do away with her life. There is however the evidence of Ch. Murari Singh (R. W. 1). He was a Revenue Assistant at Delhi when he came to give evidence in Court. According to him Shri Nawal Singh, respondent No. 2 who is father of the appellant had complained to him in May 1960, that respondent No. 1 had been maltreating his daughter and was beating his daughter and was beating her, as a result of which she had been reduced very much. He asked the witness to persuade respondent No. 1 to treat his wife properly. With the help of Shri Ram Kumar of Bharat Swantantra Mill, respondent No. 1 was brought before him. The witness tried to persuade him to keep the appellant with him and to treat her well. He replied that it was not possible for him to pull on with the girl because he did not like her.

17. This evidence of R.W. 1 has not been referred to by the learned Single Judge. It is true that the appellant's father Shri Nawal Singh (R.W. 3) was working as a Consolidation Office under Shri Murari Singh at Hissar in 1955, Shri Murari Singh was also present at the time of marriage of the appellant with respondent No.1 and that the appellant's father had known this witness for the last about 20 years. The two of them had however not been posted together after the year 1955. Respondent No. 2 had however mentioned to his witness a number of times about the maltreatment of his daughter at the hands of respondent No. 1. The witness is a respectable Government official and merely because the appellant's father was working under him or they originally belonged to villages in close vicinity to each other, is hardly any reason why this witness should come forward to perjure himself. There is no reason to distrust the evidence of this witness particularly when the statement regarding ill-treatment and beating by the appellant is also supported by the testimony of Shri Nawal Singh and the evidence of Shri Om Parkash (R.W. 4) who is related to the appellant. Om Parkash Gupta has clearly stated that he used to visit the appellant while she was residing in Viney Nagar with respondent No. 1. In 1959 he saw respondent No. 1 and told him that his relations with the appellant were not good and that in his presence also once or twice, respondent No. 1 rebuked the appellant as to why she was taking her complaints to her relatives.

18. It is no doubt true that as for beating there is no medical evidence nor has any person been examined who could say that he saw the appellant being beaten by her husband in his presence. But in a case where the girl belongs to a respectable family, there is nothing surprising if no complaint was ever lodged with the police or there is no medical evidence to show that she had been beaten by her husband. Women of such families seldom take to lodging complaints with the police against their husbands nor do they go to doctors for treatment unless the injury is of a very serious nature. Many a woman suffers in silence and even parents or relatives are non informed. It is only when life becomes of burden that a woman takes her relations into confidence and that is precisely what the appellant in the present case appears to have done. Till the year 1958 the relations between the two spouses remained cordial.

19. Thereafter whenever her father visited her, the appellant would weep and tell him that respondent No. 1 had started maltreating her. Towards the end of 1959 the maltreatment became worse. Shri Nawal Singh tried to persuade respondent No. 1 but it had no effect. It is only in April and May 1960 that the appellant wrote to her father the letters Exhibits R-1 and R-2. On receipt of the last letter, he came to Delhi and went to the house of respondent No.1. According to him, an attempt was made to persuade respondent No.1 but he became more and more excited. He called the appellant and in the presence of her father abused her. He told her father that he would continue this treatment and would abuse her and beat her. The appellant's father collected his relations and the relations of respondent No. 1 at the house of respondent No.1. In their presence also the attitude of respondent No. 1 was the same. The appellant's father was abused and disgraced by respondent No.1 in the presence of the relations. When he was asked to send away the appellant he replied that he would do so only if she could give a deed of divorce.

20. It i s in these circumstances that the appellant's father made an application under Section 100. Criminal P.C. (Exhibit R-3) on which a warrant (Exhibit R-4) was issued. The appellant was produced before the Magistrate who made an order (Copy Exhibit R-5) asking her to go where she liked. The appellant's father thereupon requested Ch. Murari Singh (R. W. 1) to intervene.

21. From 11-5-1960 till today the appellant is residing with her father at Karnal. She has a young daughter aged about 12 years who is also living with her. During the last 10 years respondent No. 1 has neither sent any money to the appellant or to his child. There is no correspondence to show that he ever cared to inquire about the well being of his wife and daughter. It was during the first week of October, 1960 when this petition for restitution of conjugal rights was pending and it was appellant should go and live with her husband. She agreed to do so but after staying with him for two or three days she left his house. She could not have done so when she had gladly yielded to the suggestion of the trial Court unless respondent No. 1 made her life miserable.

22. Respondent NO. 1 has in his statement tried to make out a case that the appellant was fond of studies and had educated herself with a view to take up a job and it is this aspect of the matter which appears to have weighed with the learned Singly Judge in holding that the appellant was a bold and dashing girl who wanted to live on her own and that is the reason why she was not prepared to adjust herself to her married life. In this certain letters written by the appellant. Exhibit A-4 is a letter dated 26-10-1953 to her sister, who was then married to respondent No.1. The next letter is Exhibit A-5 which was written by the appellant to respondent No.1 on 14-2-1954 after the death of her sister. In the first letter she tried to express dis-agreement with her own sister while in the second letter she had the courage to propose marriage to respondent No. 1 on the condition that she was allowed to educate herself further. According to the learned Judge, 'the significance of these letters is that they show up the appellant as a woman of very strong views who would live according to her own peculiar views and would not be prepared to make any adjustments with her husband. A happy married life is possible only after mutual adjustment by the husband and wife. The wife in the present case has shown herself a person who was not prepared to make such adjustments. This seems to me to be the basic cause why she had decided to leave her husband. She was obviously not happy with him but she has not been able to show that any blame was attributable to the husband which would justify her living away from him'.

23. We fail to see how these inferences can be drawn from the letters referred to by the learned Single Judge. If the appellant and her sister were practically of the same age and she wrote a letter to her sister expressing dis-agreement with her, it does not follow that she was a woman of strong determination. The next letter Exhibit A-5 was written by her because he sister had died leaving a month old baby. There was a talk about her marrying respondent No. 1 with the object of bringing up the little baby. The appellant was then busy with her studies and if thereforee she wrote to her own brother-in-law that she was prepare to marry him so as to bring up the child, provided she was allowed to educated herself further, does it show that even after her marriage she was not prepared to adjust herself to the requirements of a married life. According to the learned Single Judge this ' was an act of inexcusable impertinence to write such a letter and that it would be difficult to find another bold woman in our society'. It may so; it may not be so. Does this letter indicate that she was so bold as to throw away her married life when according to the learned Judge himself, she lived with her husband without any difficulty during the next three years and it is only when respondent No. 1 started ill treating her that she felt constrained to bring the matter up to the notice of her father and other relatives.

24. Respondent No.1 has not given any reason why his wife who according to him was being treated fairly, had suddenly started complaining against him to her father and other relations. He has examined quite a few witness (P. Ws. 3 and 4 are his own personal friends while P.W. 1 is the brother of his friend). They all came and said that there were no quarrels between the husband and wife. Respondent NO. 1 himself admitted that there used to be occasional heated arguments over the matter of the appellant's studies or taking up an employment. But if that were so there would be no occasion for the appellant speaking of daily beating in Exhibit R-1 and her prayer for being rescued. with regard to the studies, respondent No. 1 himself changed his stand and from metriculation (Which appellant had passed in 1958) he shifted the stand to her intention to take B.A., Examination 1960. As regards employment. there is no suggestion that she had applied for a particular job or that there was an offer of one and respondent NO.1 had objected to her accepting the same.

25. The learned trial judge has accepted the version of the appellant that for some time before she was rescued by the police, she was being between the husband and wife. The trouble was more serious and thereforee resulted in the complaint in court under Section 100, Criminal P.C.

26. It is true that the police officer who went to rescue the appellant stated that she was not locked up in a room, but that is because respondent No. 1 himself was in the house and she could not have left the house when he himself was there. The mother of respondent NO.1 viz Smt. Saraswai Devi was also there at the time. There is thereforee nothing in the evidence led by respondent No. 1 to show that the appellant was not being beaten. In a case where the appellant is constantly abused and beaten and her husband has the courage to do so in the presence of wife's father who too is insulted and abused in the presence of the girl, the learned trial Judge appears to us to have been fully justified in coming to the conclusion that the appellant was being tortured and cruelty was being practiced on her. The appellant has also stated that respondent No. 1 was threatening to take away her life by administering pills which are ordinarily used for developing photographs, although there is no other evidence on that point. If the relations between the husband and wife have reached such a stage that the husband was going about telling everybody who came to see him on her behalf that he would let her go only if she gave a deed of divorce, the possibility of his taking recourse to that unfortunate step, cannot be completely excluded. In any case, the apprehension that he may do so, will have a serious effect on the mind of the wife. She is bound to feel unsafe in the company of such a person.

27. We thereforee hold that respondent N0. 1 had acted in a manner which did establish the charge of beating against him. He had abused the appellant and had done so in the presence of her father and other relations. He had also not allowed her to move out of the house and it thereforee became necessary for the appellant top send two letters to her father.

28. The circumstance that he also snatched away her belongings may not have been proved but the other circumstances have been clearly established. The learned trial judge had accepted her version and there is no reason why that version should not be allowed to prevail.

29. Respondent No. 1 was given full opportunity to engage a counsel, more so when he had an eminent counsel to defend him at the stage of trial of his petition. We have no doubt that respondent No. 1 has sufficient money as he has been paying maintenance and litigation charges to the appellant. Even when the case was brought before us and we directed that he should pay a sum of Rs. 300/- on account of litigation expenses and pay maintenance to the appellant at the rate of Rs.50/- p.m. with effect from 1-6-1970 onwards, he came forward with a false execuse that he had no money and yet the whole of the amount was paid by him within a fortnight from the date on which we made the order.

30. Learned counsel for the appellant showed us certain pictures in which respondent No. 1 has been found to be sitting with another girl named Kamlesh Bhatnagar with the backs of the two meeting each other and also in a manner which showed undue familiarity between the two. It was stated that respondent No. 1 was living with that girl and had also a child from her. Respondent No. 1 asked for negatives of the pictures being produced but when the same were shown to him he kept quiet and stated that he had nothing to say in answer to the arguments of the learned counsel for the appellant. We did not allow these pictures to be placed on record nor did we take these allegations into account, as in our opinion the other evidence was quite enough for the purpose.

31. The result of the foregoing discussion is that the appellant has been able to make out a reasonable excuse to keep away from the society of respondent No. 1 within the meaning of Section 9(1) of the Act. The application of respondent No. 1 was thereforee rightly rejected by the trial Court and should not have been interfered with in appeal. The appeal is thereforee allowed with costs against respondent No. 1.

32. Appeal allowed.


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