1. x x x x
2. Now the Petition has been, fought in the two Courts below on the ground that the wife has deserted the husband, the wife contending that there was no animus deserendi and the husband contending to the contrary. This is what I find while looking at the decisions of the two Courts below. But the real question which arises in the case is as to whether the wife has withdrawn from the society of the husband without reasonable excuse. Although the Courts below have framed an issue or a point in this connection. I find that the question has been decided more on the basis of the Plea of desertion. The real Plea which requires to be considered in such a petition, is as to whether the opponent spouse has withdrawn from the society of the petitioning spouse, without any reasonable excuse. In arriving at a decision on the point, the Court must be satisfied (i) of the truth of the statements made in such Petition, viz. that the husband or wife has without reasonable excuse, withdrawn from the society of the other, and (ii) that there is no legal ground why the application should not be granted which has reference to the Provisions of Section 23 of the Act. In the instant case, what has to be found is whether the statement made in the Petition. viz. that the wife has withdrawn from the society of her husband without a reasonable excuse is true. Now, it will be clear from the aforesaid statement of facts that the Parties belong to the Harijan Vankar Community. Both the spouses are well educated. The husband had Passed his B.A. Examination and the wife had failed in the Intermediate Arts Examination at the time of their marriage in May 1964. After the marriage, the two lived together at Baroda and of this marriage, one female child was born. Some time thereafter, the wife took her education for obtaining the primarv teachers certificate. She was a Government scholar at the time and did pass the certificate examination. This appears to have been clearly with the consent of the husband. Thereafter, she took her service under the District Panchayat of Kaira and was posted at a village school in Bamangam some time in September 1967.The husband was at the time serving in a school at Baroda. Earlier the husband, had passed his B. Ed. Examination and continued to serve at Baroda. After the wife took her service as a school teacher or mistress in village Bamangam under the District Panchayat, Kaira, the husband occasionally went to reside with the wife at that village and enjoyed the matrimonial rights. Out of this wedlock, an other female child is born and there is no dispute on this Point. These facts would indicate that it was with the consent of the husband that the wife started her service under the District Panchayat Kaira. This could not have happened but for the consent of the husband. It appears to have been by mutual arrangement that the wife took service under the District Panchayat as the school mistress. It appears from the letter of the husband Ex. 29 dated 4-8-1970 that about that time there was some re-thinking in the mind of the husband. The wife in her letter Ex. 29 addressed to her husband states that she was very much willing to stay with him and to fulfil her obligations, of course while continuing her service. To the same effect is her another earlier letter Ex. 27 dated 11th January 1969.The husband's notice Ex. 23 dated 18thDecember 1969 even through his Advocate alleges that the wife was Picking up quarrels and the wife's parents wanted to mark her with some other Person and raise money and, therefore, the wife had gone away with the ornaments and deserted him, These allegations were refused by the wifes reply Ex. 42 dated 11th January 11970 and have not been substantiated The conduct of the husband ,as evidenced by this notice correspondence and in the letters does not reveal the anxiety of the husband to have the matrimonial obligations fulfilled. But, it shows that he wanted to have a divorce or to get rid of her anyhow. This appears to have been the under-current of the husbands intention in filing his petition.
3. But, the more pertinent ques tion is as to whether a wife is entitled to live separatelv while serving and away from her husband. It is true that the ordinary concept of Hindus of a matrimonial home is that the wife must re main under the roof of her husband. The duty of a wife is to submit to her husband's authority and stay under his roof and not to quit his house without adequate or justifying cause. But in the instant case the wife is serving as a school mistress and by the very nature of her work, she is compelled to live separately. She does not refuse an access to the husband. On the contrary she is prepared to live with the husband. She says that she had invited her husband to stay with her at the villages where she is serving. The indisputable fact is that earlier while the wife was at Bamangam, the husband had stayed with her and had enjoyed the marital rights and as a result another female child was born. This is thus a case of enforced separation. Where a separation is an enforced one, it is impossible to infer from mere fact of withdrawal from cohabitation any intention to bring cohabitation permanently to an end, but such an intention may be shown independently. There is no such evidence in the case showing that the wife had a permanent intention to out an end to cohabitation. The location of a wife's work is also an important consideration to be borne in mind in selecting the matrimonial home although in some cases the husband's business or the vocation and livelihood may be a predominant consideration. But, neither party has a casting vote. It is unfortunate that, in the instant case, although both the spouses are educated, they have not been able to see eye to eye for reasons not disclosed on record. But that would not amount to saying that the wife has withdrawn from the society of the husband without a reasonable excuse. In my opinion the mere fact that the wife is living separate which separate residence is necessitated by reason of the working condition of the wife and the post to which she is entitled under the District Board, would not amount to the wife withdraw from the society without reasonable excuse. The wife is prepared to have the husband under her roof. It is not that the wife has-refused to go to her husband's place in Baroda during the school holidays. It is not shown that there was any intention of the wife to bring cohabitation permanently, to an end. Even if a case was to be based on the ground of desertion and if such a cage was to be considered, it must be shown that there is a physical separation coupled with animus deserendi, which means the intention to bring cohabitation Permanently to an end. Absence of consent and absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form such an intention must be shown. No such material is on record to show that the wife has the animus deserendi. The learned Extra Assistant Judge appears merely to have taken the view that the wife must necessarily stay under the husband and obey the husband's command and therefore, the wife's refusal to stay with her husband would amount to withdrawing from the society of the husband. But. with respect the learned Judge has not considered whether the act of staying separately in this case amounts to staying away without a reasonable excuse. In my opinion, the very posting of the wife and the working conditions of the wife required her to stay separate. In the very nature of things, she can serve only under a District Panchayat and being a Primary school teacher, she has to serve under this Board or any other Board. No service is shown to have been available to her in Baroda where she is prepared to go if she gets such a service. These facts and circumstances, when examined in the context of the fact that the wife had taken her education for passing the certificate examination and had taken her service under the District Board first at village Bamangam with the consent of the husband which may be implied would go to show that the wife was living separately by consent and it was by arrangement between the parties that she is serving under the District Board. This conduct of the wife cannot be said to be withdrawal from the society of the husband without reasonable excuse. In my opinion, it is a reasonable excuse. Here, I may also consider the evidence of the husband who, in the cross-examination, has stated that even if the wife would Fame to reside in Baroda after completing her three Years service, he is not prepared to keep her with him. This is the evidence which has been brought out in the cross-examination of the husband at Ex. 22. This statement coming as it does from the husband in his evidence on oath before the Court shows the working of the mind of the husband. It may be that he does not want the wife to serve, but that is not a reasonable way of living a matrimonial life in modern times. In the present society and in the modern Condition a wife cannot be expected to implicitly obey the husband even though the husband's mandate is not reasonable. In such circumstances, there is no case for a decree for restitution of conjugal rights under Section 9 of the Act. The learned Extra Assistant Judge has not approached the question as is required by law and has not examined the relevant evidence. This is thus a case in which even in the second appeal I am inclined to interfere. I must hold that the husband has failed to prove the Plaint allegations or so to say the allegations made in his petition for restitution of conjugal rights to which I have referred to at the outset. The husband has not been able to show that the wife has withdrawn from the society of the husband without reasonable excuse. On the contrary, the wife's plea that she is serving under the District Local Board in a village school and it was with the consent of the husband that she started receiving her education and started service under the Board would negative the case of husband. This is thus not a case for grant of a decree for restitution of conjugal rights.
4. I must say that Mr. N. H. Bhatt had tried to rely upon the decision of the Madhya Pradesh High Court in Madhya Pradesh v. Mst. Bhagwati, AIR 1966 Madh Pra 212 wherein the Division Bench of that High Court has taken the view that the wife cannot by unilateral decision stay separately from her husband so as to clash with the husband's marital rights which she is duty-bound to render. But, in that case also it has been observed that the wife can stay separately for continuing her service by mutual consent and concurrence. In that case the attitude taken by the wife was, found to be amounting to a virtual withdrawal from the society of the husband and, therefore, the factum of separation amounted to the matrimonial offence of desertion by the wife as observed therein. The instant case is a cage of enforced separation and again the separation has started as a result of the consent of the husband- It was with the husband's consent that the wife took her education and it was with the implied consent of the husband that the wife started service under the District Local Board and the conduct of the wife does not show that she has animus deserendi. The Madhya Pradesh decision can have thus no applicability in the instant case.
5. Mr. N. R Bhatt, however, strongly tried to urge that, a Hindu wife must necessarily stay under the roof of her husband and obey his commands. That might ordinarily have been so in the Past and this Proposition may have some force even in the present context. But, here is a case in which by the working conditions of the wife and the implied arrangement that had been arrived at between the two spouses, the wife has taken service in the school. The husband had at all times access to the wife and. in fact.1 the husband has lived with the wife at village Bamangam where she was first Posted and as a result of which association a female child was born. This is thus not a case in which it can be said that there was virtual withdrawal by the wife from the society of the husband. In my opinion. this is a case of enforced separation necessitated by the service conditions of the wife and unavailability of service in Baroda where the husband resides. Mr. Bhatt's contention in this behalf have thus no applicability in the instant case.
6. I must accordingly allow this appeal, set aside the decision of the two Courts below and order that the Hindu Marriage Petition No. 9 of 1970 be dismissed. The respondent-husband will Pay the costs of this appeal to the appellant-wife, the costs being quantified at-Rs.200/-.
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9. Appeal allowed.