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Atmaram Vs. Smt. Narbada Devi - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtRajasthan High Court
Decided On
Case NumberCivil Misc. Appeal No. 96 of 1978
Judge
Reported inAIR1980Raj35; 1979()WLN184
ActsHindu Marriage Act, 1955 - Sections 9 and 23(1)
AppellantAtmaram
RespondentSmt. Narbada Devi
Appellant Advocate Ashok Kapoor, Adv.
Respondent Advocate D.S. Shisodiya, Adv.
DispositionAppeal dismissed
Cases Referred and Alop Bai v. Ram
Excerpt:
hindu marriage act, 1955 - section 9--withdrawn from society of other spouse--held, foundation for petition under section 9 is laid down.;it is clear that one spouse has withdrawn from the society of the other. whether there was reasonable excuse for it or not will be determined at the appropriate place hereinafter but it is clear that there has been withdrawal of one spouse from the society of the other. therefore, foundation fir the petition under section 9 of the act was laid down by the wife in it.;(b) hindu marriage act, 1955 - section 9--petition for restitution of conjugal rights--onus is on petitioner--evidence shows that husband has withdrawn from society--held, burden to prove reasonable excuse for withdrawn from society is on husband.;in a petition for restitution of conjugal.....s.k. mal lodha, j. 1. this is an appeal under section 28 of the hindu marriage act, 1955 (no. xxv of 1955) by the husband who was non-petitioner before the district judge against the judgment dated aug. 13, 1978 by which a decree for restitution of conjugal rights was passed in favour of the wife-respondent and against him in a petition filed under section 9 of the act on july 12, 1977. in this appeal, the appellant and the respondent shall be referred to as 'the husband' and 'the wife' respectively. the mother of the husband was also impleaded as non-petitioner no. 2 but her name was deleted by the learned district judge vide his order dated november 24, 1977.2. it was alleged by the wife in her petition under section 9 of the act that her marriage with the husband was held according to.....
Judgment:

S.K. Mal Lodha, J.

1. This is an appeal under Section 28 of the Hindu Marriage Act, 1955 (No. XXV of 1955) by the husband who was non-petitioner before the District Judge against the judgment dated Aug. 13, 1978 by which a decree for restitution of conjugal rights was passed in favour of the wife-respondent and against him in a petition filed under Section 9 of the Act on July 12, 1977. In this appeal, the appellant and the respondent shall be referred to as 'the husband' and 'the wife' respectively. The mother of the husband was also impleaded as non-petitioner No. 2 but her name was deleted by the learned District Judge vide his order dated November 24, 1977.

2. It was alleged by the wife in her petition under Section 9 of the Act that her marriage with the husband was held according to Hindu rites on April 29, 1967 in Bhilwara; that the mother of the husband is a greedy lady and she often used to tell the wife that her father has not given anything at the time of marriage, and that the dowry which was given to her was inadequate. It is further alleged that the husband, because of this, started quarrelling with her and he and his mother did not give sufficient food and clothes to her and beat her several times. It was averred in para 4 of the petition that the wife tolerated the misbehaviour for some time but the husband and his mother sent the wife with her father-in-law and he left her at Bhilwara on Falgunu Sudi 7, Samvat 2027 (March 3, 1971); that her clothes and the articles of dowry were kept at Ajmer and at that time she had on her body a Sari. The wife has further stated that she sent her relations at the house of the husband several times asking him that he should keep her with him as being a Hindu woman, she has to pass her whole life with the husband. Despite this, the husband did not accede to her request. In these circumstances, it was prayed that a decree for restitution of conjugal rights be passed in favour of the wife and against the husband. This petition was resisted by the husband by filing a reply on August 28, 1977. According to the husband, the wife left her matrimonial home to live with her parents at Bhilwara on March 3, 1971 and since then, she has been living with her parents there. The husband took, amongst others, the following additional pleas.--

1. that the wife has deserted the husband with an intention to bring cohabitation to an end.

2. that there has been unnecessary and improper delay in instituting the proceedings for restitution of conjugal rights and as such, the petition is not maintainable and is liable to be dismissed,

3. that the petition is mala fide and the wife is taking advantage of her own wrong for the purpose of the relief which she has prayed in the petition and,

4. that the husband has filed a petition for dissolution of marriage against the wife on the ground of desertion and that is pending in the court of the District Judge, Ajmer. It is not necessary to refer to the reply of the mother of the husband which was filed on October 28, 1977.

3. The learned District Judge framed three issues inclusive of relief on Nov. 24, 1977 which, when translated into English, read as under,--

1. Whether non-petitioner No. 1 (husband) has withdrawn from the society of the petitioner (wife) without just and reasonable cause ?

2. Whether the petition is unnecessarily delayed ?

3. Relief.

In support of the petition, the wife examined herself as AW 1 and AW 2 Kaluram, AW 3 Harishchandra, AW 4 Fatehchand (father of the petitioner), AW 5 Birdichand and AW 6 Shyam-sunder. The husband examined himself as NAW 1 and NAW 2 Madanlal, NAW 3 Laxman and NAW 4 Sohanlal. The learned District Judge, by his order dated August 30, 1978, accepted the petition and passed a decree in favour of the wife and against the husband for restitution of coniugal rights,

4. Feeling aggrieved by this judgment, the husband has preferred this appeal as aforesaid.

5. Appearing for the appellant, Mr. Ashok Kumar Kapoor has raised the following points before me,--

1. that withdrawal from the society of the husband has not been pleaded by the wife which is a sine qua non for granting relief for restitution of conjugal rights. Reliance was placed on Pramilabala Barik v. Rabindranath Barik, AIR 1977 Orissa 132.

2. that the petition is unnecessarily delayed for which there is no satisfactory explanation and as such, it is liable to be dismissed under Section 23(1)(d) of the Act. My attention was invited to Chhaganlal v. Smt. Sakkha Devi, AIR 1975 Raj 8.

3. that the petition of the wife is mala fide and on account of this, she has incurred disability for the relief prayed for by her. In support of this, Smt. Sushil Kumari v. Prem, Kumar, AIR 1976 Delhi 321 was referred to,

4. that there is no possibility of the wife and husband living together and, therefore, the learned District Judge was not justified in passing a decree for restitution of conjugal rights,

5. that it was the duty of the wife to make sincere efforts to return to her matrimonial home which are lacking in the case, for, there was no just and reasonable excuse for her to leave the matrimonial home,

6. that the wife has deserted the husband which led to the filing of the petition for dissolution of the marriage by a decree of divorce under Section 13 of the Act and it is settled, according to the learned counsel for the husband, that desertion by the wife is a good defence against the petition by wife for restitution of conjugal rights. Strong reliance was placed on Smt. Kako v. Ajitsingh, AIR 1960 Pun] 328, Baburao v. Smt. Sushila Bai, AIR 1964 Madh Pra 73, Kanna v. Krishnaswami Achari, AIR 1972 Mad 247, Dr. N. G. Dastana v. Mrs. S. Dastane, AIR 1975 SC 1534, Parihar (Priti) v. Parihar (Kailash Singh), AIR 1978 Raj 140. Learned counsel for the wife supported the judg-ment under appeal.

6. I have carefully considered the arguments raised by the learned counsel for the parties.

7. The first question that arises for my determination is whether the wife has made an averment in her petition regarding withdrawal of the husband from her society without reasonable excuse. Section 9 of the Act runs as under,--

'9. Restitution of conjugal rights, --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, on 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.

Explanation - Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society'.

In order to maintain a petition for restitution of conjugal rights, the other party must have left the petitioner or withdrawn from cohabitation without reasonable excuse. The relevant averments in this regard are contained in para 4 of the petition. It is clear from para 4 that the husband's father NAW 2 Madanlal left the wife at Bhilwara on Falgun Sudi 7, Samvat 2027 (March 3, 1971) and retained the clothes and articles of dowry at the husband's house at Ajmer. It is further stated in para 5 of the petition that the wife had sent her relations to the husband several times for requesting him to keep her with him as she is to pass her life with him. The husband did not come thereafter and even up to the date of the presentation of the petition for restitution of conjugal rights. The averments made in paras 4 and 5 of the petition are to be read in context with what has been stated in para 3 of the petition. The reply of the husband, as stated above, in regard to the averments made in para 4 of the petition was that the wife had left her matrimonial home to live with her parents at Bhilwara on March 3, 1971. To my mind, from these averments, it is clear that one spouse has withdrawn from the society of the other. Whether there was reasonable excuse for it or not, will be determined at the appropriate place hereinafter but it is clear that there has been withdrawal of one spouse from the society of the other. Therefore, foundation for the petition under Section 9 of the Act was laid down by the wife in it, Learned counsel appearing for the wife invited my attention to Ramdas v. Firm Laxmi Chand Kashi Ram, ILR (1954) 4 Raj 252 in which it was observed as under,--

'......So far as the pleadings are concerned, one cannot construe them -too strictly and I am of opinion that the interest of justice cannot be sacrificed on the score of a mere technicality...'

The matter does not rest at that. Upon the pleadings of the parties, issue No. l was framed and it was clearly mentioned in that issue whether the non-petitioner (husband) has withdrawn from the society of the petitioner (wife) without just and reasonable excuse., During the trial of the petition, at no stage on behalf of the husband any demur or protest was raised in regard to the form of issue No. 1 that there was no averment in the petition in regard to the withdrawal of the husband from the society of the wife. The husband, in my opinion, led evidence in rebuttal of issue No. 1 to show that be has not withdrawn from the society of the wife but the wife had left him io live with her parents on March 3, 1971. In Someshwar Dutt v. Tribhuwan Dutt, AIR 1934 PC 130, it was laid down,--

'Their Lordships of the Privy Council will be disinclined to stress the structure of the pleadings in a suit too strictly, if fair notice of the case to be made by the plaintiff has been given. and issue has been joined on an enquiry but faintly adumbrated in the pleadings.'

This decision was followed by this Court in Mahboob Khan v. Hakim Abdul Rahim, AIR 1964 Raj 250. In these circumstances, I am of the opinion that the first point which was pressed for my consideration by the learned counsel for the appellant that there is no allegation in the petition in regard to the withdrawal from the society of the wife, is devoid of any force.

8. The learned District Judge, after scrutinizing the evidence of the parties, came to the conclusion that the husband has withdrawn from the society of the wife when he sent the wife with his father to Bhilwara and for that, there was no reasonable excuse. He disbelieved the plea of the husband that the wife left her matrimonial home to live with her parents at Bhilwara on March 3, 1971.

9. In a petition for restitution of conjugal rights, the onus of proof is on (the petitioner and he/she has to suc-jceed on the strength of his or her Awn case. In this connection, it is necessary to examine the evidence of the parties. AW 1 Narbada (wife) has deposed that her father-in-law (father of the husband) left her at the parents' house at Bhilwara and while doing so, he told that he would come after 8-10 days and take her back but thereafter, nobody came to take her. In cross-examination, she has stated that through her relations, who are residents of Ajmer, message was sent to her father-in-law to take her. She has denied the suggestion that she has left her husband 6-7 years ago or that she came to Bhilwara against the wishes and without the consent of her husband on March 3, 1971. AW 2 Kaluram is related to both the parties. This witness has deposed that for effecting a settlement between the parties during his stay at Ajmer in Samvat 2028 for two moths, he went to the shop of the father of the husband where he was told by him (Madanlal) that efforts are being made to call back the wife, that the husband is not agreeable and that he wants to marry again. This witness further sent the message through his brother-in-law Champalal who called him (Madanlal) in his presence and Poonamchand and told him as to why are they quarrelling. Thproupon, Madalal told him that he is trying but the boy is not agreeable. AW 3 Harishchandra has stated that the father-in law of the wife left her at Bhilwara 6-7 years ago and that month was Falgun. This witness had also gone to Ajmer several times for talking the matter with Madanlal and he was told that the wife would be called back within 10-15 days, and he should not worry on that score. This witness has denied the suggestion that the wife had left the husband. It is clear from the statement of AW 4 Fatehchand that after four (years) of the marriage, Madanlal (father of the husband) left the wife at Bhilwara because of the quarrels in his house and assured that she would be called back after 5-10 days. This witness also had gone to Ajmer for effecting settlement along with his father, maternal uncle Kaluram and AW 5 Birdi-chand. He has further deposed that one Surajkaran of Vijaynagar was also with him and he went to Ajmer after one month from the date when the wife was left at Bhilwara. AW 5 Birdichand has no knowledge as to the actual leaving of the wife by her father-in-law at Bhilwara but he was told by her niece that the wife's in-laws have left her at Bhilwara and have not come to take her back, so some arrangement may be made. The witness has stated that he went to the husband and his father in this connection 7-8 times to Ajmer and Kishangarh. As against this evidence, NAW 1 Atmaram (husband) has deposed that on March 3, 1971, the wife went alone and since then she has been residing with hor parents and that she withdrew from his society against his wishes and without his consent. According to the husband, there is no cause for the wife to live separately from him. It appears from his statement that he does not want to keep his wife as she has deserted him with an object to put an end to marital relation. He has supported his defence that the wife has left him on March 3, 1971 about which he was informed on telephone. It is admitted by him that after March 3, 1971, no attempts were either made by him or his father to bring back the wife as she had told that she did not wish to remain with him and he might do whatever he liked. He showed his unwillingness to keep the wife with him as the latter had ended the marital relation and had deserted him. NAW 2 Madanlal, who is the father of the husband, has deposed that the wife left for Bhilwara against the wishes and without the permission of her husband on March 3, 1971 telling him that she was going to Bhilwara to live with her parents. In cross-examination, he has stated that three or four days after March 3, 1971, the husband went to Bhilwara and the wife finally told him not to come. He admitted that Rameshwar Prasad Choudhary, Harishankar Choudhary, Nihalchand Choudhary, Ramswarup Sadhilya and Rameshwar Prasad Bhandari are known to him and they are all members of the Agarwal community. NAW 3 Lax-man has stated that on the day when the wife left for Bhilwara, he met the husband at the bus-stand and on enquiry from him, he told him that his wife has gone to Bhilwara which information was conveyed to him, by his father on phone. NAW 4 Sohanlal has stated that the wife has been living with her parents at Bhilwara for about 7 years from the date of his deposition and she has been so residing with her parents without the permission of her husband. He has further stated that on that day, he went to the house of the husband's father and there he came to know that the wife has left Ajmer of her own accord and thereafter, had. not returned. The husband is also said to have told him that on the coming Sunday, he would go to Bhilwara and bring the wife with him. On his return from Bhilwara, the husband told him that the wife was not ready and willing to come with him. Having considered the above evidence, in my opinion, the learned District Judge was right in placing reliance on the wife's witnesses. From the evidence of the wife's witnesses, it is clear that the wife was left at her parents' house at Bhilwara by the husband's father on March 3, 1971 (about this date, there is no dispute) and thereafter, despite efforts, she was not kept by the husband. The entire conduct of the parties afford a useful guide for determining whether the petitioner deserves, at the hands of the Court, the relief which she seeks. Explanation to Section 9 makes it abundantly clear that when a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse is on the person who has withdrawn from the society. In this case, as stated above, on the basis of the evidence led on behalf of the parties, it is proved that the husband has withdrawn from the society of the wife and that led to the filing of the petition for the restitution of conjugal rights. In these circumstances, the burden to prove reasonable excuse for withdrawal from the society of the wife is on the husband. Bearing this principle in mind, I am called upon to determine whether the husband has been able to discharge the aforesaid burden or not.

10. In Smt. Kako's case, in para 8, it has been observed,--

'...........-The claim of the husband can only be defeated if he had been guilty of constructive desertion which could have been proved by his own conduct in compelling his wife to have taken the course which she adopted. Neither the factum nor the animus in support of such an assertion has been established. The wife has been living apart from her husband of her own choice and her conduct is attracted by the principle laid down by Lord Penzance in Fitzgerald v. Fitzerald (1869) 1 P and D 694 cited in Pulford v. Pul-ford, 1923 P. 18 that 'Desertion means abandonment, and implies an active withdrawal from a cohabitation that exists.' '

In Kanna's case, Section 9(1) came up for consideration and it was held by a learned single Judge of the Madras High Court that the fact that the evidence adduced by .the wife is not sufficient to sustain her plea of cruelty of the kind mentioned in Section 10(1)(b) of the Hindu Marriage Act will not justify the court in awarding restitution against her, and even if the husband satisfies the conditions stipulated in Section 9(1) of the Hindu Marriage Act, the court will still have a discretion to grant or deny the relief of restitution depending upon the circumstances of each case, whether the misbehaviour or misconduct of the husband is such as will entitle the wife to refuse to cohabit with him.

11. Desertion is a good defence in a petition for restitution of conjugal rights. The case of the husband is that the wife has deserted the husband with an intention to bring cohabitation permanently to an end. Whether the husband by cogent and convincing evidence, has been successful in establishing the desertion as alleged by him (sic). It was held in Lachman Uttam-chand v. Meena, AIR 1964 SC 40 that in a case of desertion, factum as well as animus deserendi is on the petitioner and he or she has to establish beyond reasonable doubt to the satisfaction of the Court, the desertion throughout the entire period of two years before the petition as well as that such desertion was without just cause. NAW 1 Atma-ram has merely stated that the wife has deserted him in order to bring the marital relation to an end and he did not want to keep her with him. NAW 2 Madanlal has deposed that the wife left the husband with an intention to desert ifjR;kx him. When the evidence of AW 1 Narbada, AW 2 Kaluram, AW 3 Harishchandra and AW 4 Fatehchand is carefully considered, it can safely be inferred, as held above, that the wife was left by the father of the husband at her parents' house at Bhilwara. Thereafter, from the statements of the aforesaid witnesses as also from the statements of AW 5 Birdi-chand and AW 6 Shyamsunder, it is established that despite efforts, the husband did not agree to keep her. Learned counsel appearing for the appellant tried to impress upon me, on the basis of some circumstances, for in-stance, that the wife, though she is literate, did not address any letter to the husband showing her willingness to go to his house, an inference of desertion should be drawn against her. I regret my inability to agree, for, there is satisfactory evidence on record which has already been referred to above, to show that efforts and attempts were made by AW 2 Kaluram, AW 3 Harishchandra, AW 5 Birdichand and AW 6 Shyamsunder but the husband was not agreeable to keep her. In these circumstances, I am constrained to hold that the husband has not been able to establish that the wife has deserted him. In other words, there was no just and reasonable excuse for the husband to withdraw from the society of his wife.

12. On the basis of Section 23(1)(d) Mr. Kapoor contend -d that there was an improper delay in filing the petition for restitution of conjugal rights and there is no explanation for this. It is not in dispute that both have been living separately since March 3, 1971, the date on which, according to the wife, her father-in-law-left her at Bhilwara at her parents' house and according to the husband, the wife, of her own accord, left the matrimonial home. The petition for restitution of conjugal rights was filed on July 12, 1977. It is therefore, clear that this petition was filed 6/ years after the date of separation. I do not want to encumber this judgment by making a detailed reference to the statements of the wife's witnesses wherein they have deposed that during this period, serious efforts were made by the wife and her father to send the wife to her matrimonial home. Reference in this connection may be made to the statements of AW 2 Kaluram, AW 3 Harishchandra. AW 4 Fatehchand AW 5 Birdichand and AW 6 Shyamsunder. AW 6 Shyamsunder has stated that in this connection, he went to the husband's house in the years 1974, 1975 and 1976 on three occasions, though he is not able to tell the months and dates of the aforesaid visits. Similarly, AW 5 Birdichand has stated that he had gone 7 or 8 times. AW 2 Kaluram, who is related to both the parties, has stated that he, with the help of his brother-in-law, Champa-lal made efforts in this regard and went to Ajmer 20-30 times. It is, thus, clear from the evidence that has been led on behalf of the wife that from 1971 to 1976, incessant efforts were made and negotiations were held. V. P. Tyagi J., as he then was in Gurmej Singh v. Jasbir Kuar, 1975 WLN (UC) 456, after taking into consideration the circumstances of that case, held that it is difficult for the court to say that there was unnecessary and improper delay on the part of the petitioner (wife) to move the court to ask for the relief sought in the proceedings for restitution of conjugal rights. In that case, the wife did not want to take the matter to the court and was trying to see that the matter was amicably settled between the parties but her husband did not show any inclination to accept her and. therefore, she had to invoke the jurisdiction of the Court. Chhagan-lal's case on which reliance was placed by the learned counsel for the appellant is entirely distinguishable. That was a matter under Section 10 of the Act. Judicial separation was sought on the ground of adultery of the husband. There was delay of more than four years about which there was no explanation. In those facts, it was held that decree for judicial separation could not be granted. Here, as stated above, incessant efforts were made for amicable settlement and as a last resort, when all the efforts failed, the petition for restitution of conjugal rights was filed. In these circumstances, the petitioner cannot be denied the relief for restitution of conjugal rights on the ground of delay.

13. The third point which was canvassed by the learned counsel for the appellant was that this petition is mala fid'. It may be mentioned here that in the reply to the petition in para 14, the husband has alleged that the petition is mala fide and this has been further elucidated in the same para by saying that wife is taking advantage of her own wrong for the purpose of the relief for restitution of conjugal rights. In view of the finding that I have arrived at, in respect of issue No. 1, it cannot be said that the wife is taking advantage of her own wrong, for, the husband has withdrawn from the society of the wife without just and reasonable excuse. As such, Section 23(1)(a) of the Act is not attracted. Even otherwise, on the facts and in the circumstances of this case, I am unable to hold that the petition for restitution of conjugal rights is mala fide. So far as Sushil Kumari Bang's case is concerned, the decision was rendered in peculiar circumstances. In that case, the husband was claiming restitution of conjugal rights as well as charging the wife with illicit sexual intercourse sometimes in concealed words and sometimes in the plainest of terms. He had not pleaded any forgiveness. The learned Judge was of the opinion that the two claims cannot stand side by side as they are incompatible. In those facts, it was held that in order that a petition for restitution of conjugal rights by the husband should succeed, it is necessary for him to be sincere and a decree for restitution may be refused if the court finds that the petition is not bona fide and there is an ulterier motive other than the sincere desire for a resumption of cohabitation.

14. Now, it will be proper to deal with the remaining points, namely, that there is no possibility of the husband end the wife living together and so decree for restitution of conjugal rights is not justified and that there were no sincere efforts by the wife to come to her matrimonial home. I have already dealt with the point. It is futile to contend that no sincere efforts were made by the wife to come to her matrimonial home and, therefore, this should not detain me. It is clear from the statement of the husband as NAW 1 that he is not ready to keep the wife with him because the wife has put an end to marital relation and has deserted him. There was no just and reasonable excuse as found above for the husband to withdraw from the society of the wife. A Division Bench of the Madhya Pradesh High Court in Narayan Prasad v. Smt Prabhadevi, AIR 1964 Madh Pra 28, in para 11, observed that the defendant in that case was always willing to live with the plaintiff and when the parties appeared before the Judges in person, the wife entreated him but the appellant was not prepared to take her back. The learned Judges held that the offer of the wife to go back and live with the husband without repeating any conduct which might incur the husband's displeasure, was a complete answer to the allegation of desertion and the husband could not refuse her reinstatement.

15. Before commencing hearing of the appeal, efforts for reconciliation between the parties were made in my chamber. The wife stated that she is willing and ready to go with her husband. The husband did not accept the request of the wife on the ground that she has been living separately from him for about eight years. In these circumstances, the attempt for reconciliation between the parties in the appeal failed. In Rameshchandra v. Smt. Premlata Bai, AIR 1979 Madh Pra 15, it was held that it is open to the Court while disposing of a proceeding under the Act to have due regard to the reconciliation proceedings and the conduct of the parties therein. It has already been held by me above that it was the husband who had withdrawn from the society of the wife without reasonable excuse. The wife volunteered to live with the husband but the husband was not willing. In Parihar's case learned Judge took the view that even if the wife, where she is a deserting spouse does not prove just and reasonable excuse for living apart, the petitioner husband has still to satisfy the court that desertion was without just cause. That case pertained to the dissolution of marriage by a decree of divorce. After taking into consideration Kuppuswami v. Alagammal AIR 1961 Mad 391 and Alop Bai v. Ram-phal AIR 1962 Madh Pra 211, the learned Judge observed after taking note of the arguments advanced on behalf of the wife that their marriage is only an empty shell which can be destroyed with maximum fairness and minimum bitterness and in those circumstances, he held that the marriage deserved to be dissolved. In this connection, he observed, --

'If they cannot bury the hatchet, let them bury, the marriage and live again'.

Barbornes' Case (5) of course to a certain extent helps the appellant. After relying on Alop Bai's case the learned Judges constituting the Division Bench observed that where the circumstances of the case disclose that there is no possibility of the parties living together in a state of happiness, a decree for restitution of conjugal rights would be unjustified. These observations were made while considering the provisions of Section 9(1) of the Act that even when the conditions stated in that section are satisfied, it is in the discretion of the court whether or not to pass a decree for restitution of conjugal rights and for exercise of discretion vested in Court, it has to consider the entire conduct of the parties to judge whether the petitioner deserves to get the relief and if such relief is not unreasonable in a particular case against the respondent. In that case, it was found as a fact that the attitude of the husband amounted to legal cruelty and constituted a ground for refusal to a decree for restitution of conjugal rights. Therefore in the fact and circumstances of the case before me, the observations adverted to above cannot be availed of by the learned counsel for the appellant.

16. Learned counsel appearing for the appellant also placed reliance on the observations made by a learned Single Judge of the Madras High Court in Kanna's case. In that case, a petition was filed for a decree for restitution of conjugal rights under Section 9 of the Act. The principles laid down in Alop Bai's case were followed. The learned Judge believed the wife-appellant and her witnesses when they stated that she returned to the husband's house a month after her delivery in Awani, 1959 and, therefore, it sounded extremely possible for the husband to have been nagging and frequently worrying the wife to comply with his demand for settling her properties in his favour. In that case, the husband was chargrined against the wife's father because of a severance of the partnership business and the learned Judge was of the opinion that it is extremely likely that the husband had transferred that bitterness which he had entertained towards the father of the wife to the daughter. On thnse premises, the learned Judge opined that the relation between the parties appears to have been strained to the breaking point. Attempted negotiations in those circumstances bore no fruit. A suit was also instituted for the maintenance of her children. In those facts and circumstances, the learned Judge observed,

'......It is obvious that it has become a practical impossibility for the parties to live together and I am satisfied that it would be totally improper to order restitution'.

This authority, in my opinion, is also distinguishable.

17. In the facts and circumstances of this case in my opinion, the learned counsel for the appellant is not justified in contending that as there is no possibility of the husband and the wife living together, the wife is not entitled to a decree for restitution of conjugal rights.

18. The upshot of the above discussion is that no legal ground for refusing a decree for restitution of conjugal rights is made out by the appellant. I am satisfied that for the reasons mentioned hereinabove, it is the husband who without just and reasonable excuse, has withdrawn from the society of the wife. In these circumstances, the decree for restitution of conjugal rights was correctly passed by the learned District Judge.

19. The result is that this appeal has no force and it is hereby dismissed. In the circumstances of the case, there will be no order as to costs of this appeal.


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