1. Appellant Manjula Zaverilal Kothari was the original opponent. She is the wife of respondent Zaverilal Vithaldas Kothari who filed a petition for restitution of conjugal rights. Respondent alleged that he was married with the appellant on 19th April, 1960 at Rajkot according to Hindu religious ceremony and custom of the caste and that his wife came to stay with him. Parents of the appellant are staying in Kuwait, a small Shaikhdom in Persian Gulf. It appears, respondent-husband was serving as Professor and when the collage closed for vacation, husband and wife went to visit the parents of the wife at Kuwait. After the college re-opened, respondent husband alone returned and wife stayed behind stating that she was not well and she would join her husband after some time. Since then wife has not come to stay with the husband. It is alleged that somewhere in 1964 wife with her parents had come to Raikot, but she did not come and stay with the husband. Husband in his petition alleged that appellant-wife has withdrawn from his society without reasonable excuse and he is therefore, entitled to a decree for restitution of conjugal rights.
2. Wife resisted the petition by her written statement Ex. 12 inter alia contending that her husband has withdrawn from her society without just and reasonable cause. She admitted that they have separated since 10th August, 1961 when the husband left Kuwait and since then they have never stayed together, but looking to the conduct of the husband, in that he was responsible for inflicting mental cruelty on her, he is not entitled to a decree for restitution of conjugal rights. Wife rest content with filing her written statement and produced some correspondence between the parties but did not step into witness box and application on her behalf to examine her on commission was rejected.
3. The learned trial Judge was of the opinion that even though wife had withdrawn from the society of the husband, she did so for a reasonable cause because the husband was guilty of inflicting mental cruelty on the wife. In accordance with this finding, the learned trial judge dismissed the petition of the husband for restitution of conjugal rights. Husband preferred Regular Civil Appeal No. 51 of 1971 in the Court of the District Judge at Raikot. The learned District Judge was of the opinion that husband has satisfactorily established that the wife has withdrawn from the society of the husband and that she had no reasonable excuse for withdrawing from the society of the husband and that the husband was not guilty of inflicting any mental or physical cruelty on the wife. In accordance with this finding, the learned District Judge allowed the appeal preferred by the husband and decreed the suit for restitution of conjugal rights. The wife having been aggrieved with this judgment and decree has preferred this appeal.
4. Mr. S. M. Shah, learned Advocate who appeared for the appellant-wife urged that even though the wife has not stepped into the witness box to substantiate her allegation of husband inflicting mental cruelty on her, yet the letters written by the husband to the wife are self eloquent and they would show that the wife. was the victim of mental cruelty inflected by the husband in that by insinuation and innuendo he had cast suspicion on her character which was without foundation and wholly unjustified. It was also urged that in order to succeed in a petition for restitution of conjugal rights the petitioning spouse must not only prove that the other spouse withdrew from the society of the petitioning spouse but burden is on the petitioning spouse to further prove that withdrawal was without a reasonable, excuse. It was lastly urged that the learned trial Judge was in error in rejecting the request made on behalf of the wife to examine her on commission and the Court should review that order and direct that commission be issued to examine the wife.
5. Before I proceed to examine the contentions raised by Mr. Shah, learned Advocate for the appellant, it would, be advantageous to set out certain undisputed facts. Marriage between the parties to this petition was solemnised on 19th April,1960. Parents of the wife are settled in Kuwait. Respondent husband is serving as a Professor. After marriage both husband and the wife during the period when the college was closed for vacation visited Kuwait and stayed with the parents of the wife. When the College re-opened husband returned alone, wife staying behind stating that she would rejoin the husband as soon as her health improved. It is an admitted position that both the spouses have separated company since 10th August, 1961; and since then they have not lived under the same roof. It is again an admitted position that in the company of her parents the wife visited Rajkot in November, 1964 but she did not go to stay with her husband. The petition from which the present appeal arises was instituted on 3rd January, 1968. Wife has not stepped into the witness box to substantiate her allegations.
6. Section 9 of the Hindu Marriage Act provides that either the husband or the wife can present a petition for a decree for restitution of conjugal rights, if it is shown that the defending spouse has withdrawn from the society of the petitioning spouse without reasonable excuse and if the Court is satisfied of the truth of the statements made in such a petition, and the Court is further satisfied that there is no legal ground why the application should not be granted, the Court may pass a decree for restitution of conjugal rights. In the petition presented by the respondent husband it was alleged that his wife the present appellant has withdrawn from his society way back since August 1961 and has refused to return to him, to cohabit with him and therefore, a decree for restitution of conjugal rights should be made in his favour. The wife contested the petition alleging that the husband was guilty of inflicting mental cruelty on his wife relying upon some letters admittedly written by the husband to her. It was urged that these letters gave her mental agony because by insinuation and innuendoes, her character was sought to be stigmatised and as insinuation and innuendoes were wholly unjustified, she suffered mental cruelty. The learned District Judge has carefully read all these letters and has come to the conclusion that the letters did not convey either directly or by innuendo or by insinuation or in an implied manner any stigma on the character of the wife. On the contrary, the learned District Judge was of the opinion that the letters are written by a husband who appeared to be ardently in love with his wife and was yearning for the return of the wife to cohabit with him. Now, it may be pointed out that even the learned trial Judge, who rejected the petition of the husband has observed pertinently at two places in his judgment. In paragraph 14 he has observed as under:
'All throughout his letters one feels that he ardently desires the return of his wife to him, but unfortunately, he has failed to use his learning tactfully to his advantage, instead he has become argumentative in his expression and tactlessly mentioned many things, which one should avoid, if one desires to secure the sympathy and love of the person whom one addresses.'
At another stage, in paragraph 16, the learned trial Judge has observed as under:-
'Now, the entire tone of the letters from the petitioner is persuasive and is an attempt to induce the respondent to come to him but the method of approach to the heart of the respondent is faulty and tactless in the sense that he has pleaded highly objectionable matters before the respondent, which I feel can be exercising mental cruelty towards the respondent.'
Both the trial Court and first appellate Court are agreed that the husband went on writing letters with a view to persuadings wife to come and stay with him. It appears that wife became more and more obstinate either on her own account or under ill-advised pressure of the parents not to return to the husband. There is not the slightest allegation of any physical cruelty. Even when the wife returned to India in 1964, with her parents, she did not visit her husband; and every attempt of the husband to meet her was thwarted. It is such a wife who is now complaining about mental cruelty on reading some letters written by the husband. Now, one must realise the hard fact of life that when a husband writes letters to his wife or vice versa they are not supposed to be accurate and precise keeping in view distant possibility of the letters being read by unseen pathetic hard-boiled lawyers and Judges devoid of sentiments, as if these letters were going to provide documentary evidence in an ultimate rupture between the husband and wife. The letters have to be read in the background in which they are written between two spouses in utmost marital confidence. Secrecy in love letters ties in a fact that it is read by addressee alone and none else. Therefore. While writing such letters there is no inhibition or taboo. They are written in a certain vein with certain mental approach and pen addressing itself more to the heart and less to the head. These letters cannot be construed as if they are precedents or judgments or statute. They have to be read by putting one's feet in the shoes either of the husband or a wife and then try to make sense out of it. The learned trial Judge was completely in error in reading into these letters something which was not in it at all. Referring to letter Exh 72, the learned trial Judge observed that when the husband inquired from the wife whether she had conceived, he wanted to stigmatize her character impliedly suggesting that she was a Woman who had strayed from the path of virtue. This is just an approach with coloured glasses. The husband and wife were together and letters were written only a few months after they parted company. If the husband were to inquire about the natural outcome of the man and woman being under the same roof, there is no attempt at stigmatizing the character but attempt at ascertaining fruitful outcome of lawful wedlock. The learned trial Judge unfortunately read into the letters much more than what they wanted to convey. It is true that the husband appears to be tactless. But for the matter of it, should the husband be tactful with his wife also? There are places where one can be confidently tact less and one such place ought to be one's own wife or one's own husband. Let us not forget that the husband is a professor who must have read a good of literature. In any place outside the class room where he would find chance to give vent to his strain of having read come fictional literature, the only place he must have found would be the letters to his wife. Such letter cannot be read in a manner done by the learned trial judge by picking up sentences torn out of their context and by putting meaning on it which one can never think of putting. The learned trial Judge approached the matter, as if he was construing a sale deed or mortgage deed or a contract. The aforementioned documents may come into existence ordinarily with the assistance of lawyers or expertise of drawing up documents, or with the assistance of legal expertise. Letters are not exchanged between husband and wife after consulting the experts on law. Therefore, with the greatest respect, the learned trial judge completely misdirected himself while construing these letters and having once come to the correct conclusion that the letters written by the husband are not only persuasive but disclosed an ardent desire of the husband to induce the wife to go to him, he went away absolutely on the won a track when he says that these tactless letters inflicted mental cruelty. The finding of the learned trial judge is thoroughly unsustainable. In fact no attempt was made to read these letters over again to me. However, those letters which have been referred to by the learned trial Judge were read, more especially sentences relied upon by the wife in support of her case, and I am fully satisfied that these are the letters written by the husband frustrated in his overtures to his wife and agonised because of his failure to induce her to return to him during the time and period when to the two young men marital love means everything and nothing is higher than it. Letters disclose the yearning of a husband in ardent love superimposed by garrulous approach of a man who has read literature and is working as a professor. These letters have to be read in that way and when read in that vein they would only mean that there was no attempt at inflicting cruelty on wife. It is the perverse approach of the wife which impelled her to read these letters from a different angle. In fact the tragedy is that we have no evidence as to how the wife read these letters because she has not stepped into the witness box. It is Mr. Vora learned Advocate for the wife who read the letters on behalf of the wife and out his own construction thereon. I fail to see how Mr. Vora could ever imbibe the spirit of the wife for whom the letters were meant, Therefore, these letters are wholly harmless documents one would ever come across and should not be the foundation for propounding an allegation that by some of the stray sentences picked up here or there torn out of the context read by a lawyer in the cool almost here of Law Court conveying any marginal mental cruelty being inflicted on wife. First contention of Mr. Shah must, therefore, be rejected as utterly unsustainable.
7. Next contention of Mr. Shah was that a petitioning spouse who files a petition for obtaining a decree for restitution of conjugal rights must not only prove (1) that the defending spouse has withdrawn from his or her society but must go further and prove (2) that he or she withdrew from the society without reasonable excuse. Mr. Shah urged that in the present case, the husband must prove that his wife withdrew from his
society and that she has done so without reasonable excuse. In, other words, Mr. Shah contended that the burden of proving i) withdrawal from society and (ii) want of reasonable excuse both lie on the aggrieved petitioning spouse. In this connection, Mr. Shah relied upon two judgments one of B. G. Thakore J. (as he then was) in Kantagauri Mohanlal v. Soni Hiralal Mohanlal, Second Appeal No, 760 of 1964 decided on 25th June 1969 (Guj.), in which it was observed that while dealing with a petition under Section 9(1) of the Hindu Marriage Act, it is the duty of the Court first to decide whether the defending spouse has with drawn from the society of the aggrieved spouse without any reasonable excuse. The burden of proof of this issue must lie completely on the aggrieved spouse and if aggrieved spouse failed to prove this issue, then no other question can arise for Court's consideration. This judgment was read to convey that initial burden on the aggrieved spouse filing petition under Section 9(1) is not only to prove withdrawal from society by de -fending spouse but also that the defending spouse has no reasonable excuse for doing so. Reference was also made to Madhukanta w/o Thakorlal Chunilal v. Thakorlal Chunilal Daru, Second Appeal No. 54 of 1966 decided on 14th november 1969 (Guj.) decided by Y. D. Desai J. (as he then was). It was held in this judgment that the burden of proof with respect to establishing facts including want of reasonable excuse is on the petitioner while the burden of proof with respect to defence available under Section 9(2) of the Act, and which have been raised is on the defending spouse. With greatest respect, it would have become necessary to refer this matter to a larger Bench because bare perusal of Section 9 would show that the aggrieved spouse who brings petition has only to prove the allegation made in the petition and it is the defending spouse who must show reasonable excuse for withdrawal from the society. Section 9(2) reads as under:
'9. (1) When either the husband or the wife, has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the District Court for restitution of conjugal rights and the Court, an being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly. '
The aggrieved spouse must file a petition. Therein he or she must complain that the defending spouse has withdrawn from her or his society. After the aggrieved spouse proves that the defending spouse has withdrawn from his or her society, it would be open to the defending spouse to go further and establish that he or she had done so for a reasonable excuse. How could an aggrieved spouse prove that not only the defending spouse withdrew from the society but also that the defending spouse ha d no reasonable excuse for doing that? It is the defending spouse who must have reasonable excuse for withdrawal from the society. Assumption underlying the Hindu marriage is that husband and wife shall stay together under the same roof, meaning thereby that they would cohabit and both sides would fulfill their mutual marital obligations and one of the marital obligations is procreation, because the foundation of the spiritual Hindu Law is of proprinquity. Procreation of a child and that too male child who will offer Pinda is the sine qua non of spiritual Hindu Law. It procreation is one of the essential and probably most important. marital obligation, it cannot be achieved unless husband and wife cohabit, and this cohabitation postulates being in company of each other. Therefore, any spouse who withdraws from the society of the other spouse, must justify its act of withdrawal by showing that he or she had reasonable excuse for withdrawal from the society of the other spouse. Aggrieved spouse must, therefore, come to the Court with a petition and allege in the petition that the defending spouse has withdrawn from his or her society. If the aggrieved spouse proves withdrawal from the society . by the defending spouse, the defending spouse must go ahead and prove that he or she had reasonable excuse for such withdrawal from the society 431 the aggrieved spouse. If she or he fails to prove any reasonable excuse for such withdrawal, decree for restitution of conjugal rights must follow because that is the normal state of husband and wife con template by Hindu marriage. This construction of Section 9(1) is borne out by the expression 'on being satisfied of the truth of the statements made in such petition'. Court may decree restitution of conjugal rights. Now, in the petition the aggrieved spouse would allege withdrawal from the society. The defending spouse shall show reasonable excuse for her conduct for withdrawal from the society. This is crystal clear from the language employed in S. 9 (1). Now, if the burden of proving even reasonable excuse for which defending spouse has withdrawn from the society of the aggrieved spouse is also in the aggrieved spouse, how is he or she to discharge that burden? The aggrieved spouse would never know what excuse would be put forth by the defending spouse. Aggrieved spouse may assume some reason, allege it in the petition and proceed to prove it that is not reasonable and defending spouse at that time may come out and say that he or she has other or entirely different reason or excuse and the aggrieved spouse must go further and prove that the alleged excuse is not reasonable. This is just inconceivable and is not warranted by the language employed in Section 9(1). There fore, with greatest respect, it would have been necessary to refer this matter to a larger Bench, but in view of certain facts disclosed in this case, it is not necessary to do so.
8. Following the ratio of the aforementioned two judgments, let me see whether the appellant-wife has put forth any excuse much less reasonable excuse for her withdrawal from the society, and whether that has been established in this case. Her case as put forth in the written statement is that as the husband was guilty of inflicting mental cruelty on her as exhibited through the letters written by the respondent to her, she has withdrawn from the society of the husband. As the mental cruelty is not proved, no reasonable excuse is shown for withdrawal by wife from the society of the husband. There is no excuse much less reasonable excuse. The burden of proof when both the parties have led evidence pales into insignificance. Therefore, on the evidence it is satisfactorily established that not only the wife has withdrawn from the society of the husband but she has done so without reasonable excuse.
9. Last contention is that the learned trial Judge was in error in rejecting the application for issuing commission to examine the wife. The wife is staying with her parents at Kuwait, a Shaikhdom in Pursian Gulf. It is true that she was far away from Rajkot where the husband instituted the petition. However, going through the judgment of the learned District judge, I do not find any thing which would indicate that this contention about the refusal of the request for issuing commission was canvassed before the learned District Judge. It would, therefore, not be proper now to reopen this question in a Second Appeal. It may as well be mentioned that the oral evidence of wife would hardly in any way be helpful to her because she alleged mental cruelty and relied upon the letters written by the husband for mental cruelty, These letters are on record and they have been admitted in evidence. The oral word would not improve the case, and therefore, also I am not inclined to reconsider that order.
10. These were all the contentions urged in this appeal and as there is no merit in any of them the appeal fails and is dismissed, but looking to the fact that the wife fails, she should not be made answerable for the costs of the husband. Therefore, the proper order of costs would be that parties to bear their respective costs throughout.
11. Appeal dismissed.