(1) The plaintiff, a Hindu wife, whose suit for maintenance was decreed by the trial Court and dismissed by the appellate Court in appeal is the appellant in the second appeal.
(2) This is an unfortunate case where the marriage struck the shoals even immediately after the marriage. The parties were married on 16-61948, and it appears that the plaintiff lived with her husband, the defendant, for about 20 days or so after the marriage and left her husband's house to her mother's house on grounds of ill-treatment. A male child was prematurely born to her on 2-2-1949 and died in a few days. The canker of suspicion that he may not be the father of the child had somehow wormed its way into the mind of the husband and estranged feelings between the spouses led to two suits--(1) O. S. No. 597 of 1949 on the file of the City Civil Court, Madras for maintenance by the wife, and (2) C. S. No. 156 of 1949 in the Original side of this Court by the husband for restitution of conjugal rights.
(3) The two suits were tried together on the Original side of this Court and on 6-2-1952, Panchapakesa Aiyar, J. passed a common decree in both the suits. It is observed in the judgment that 'a Court is always anxious to keep a marriage intact, if possible, especially a marriage contracted so recently as this and when it can easily pass decrees in both the suits just and equitable and satisfactory to all'. After noticing that a husband's false imputation of unchastity to his wife would-be a sufficient ground to non-suit him if he had filed a suit for restitution of conjugal rights, and that that would be a sufficient ground also for awarding separate maintenance to the wife, that in the case of a sensitive woman, an imputation of unchastity may end in nervous break down or the woman may commit suicide, and in other cases the jealous husband may commit murder and in certain circumstances, the conduct of the husband may not only cause mental pain but also danger or apprehended danger to life, limb or health of the wife, which is the essence of legal cruelty, Panchapakesa Aiyar, J. held that fortunately, in the case in question, there was no need to refuse restitution of conjugal rights on terms as the husband has asserted that he merely 'entertained' the strongest suspicions regarding the wife's unchastity and delivering a bastard child but had 'not communicated' these ideas to his wife or others. A decree for restitution of conjugal rights was therefore passed in the cases, dismissing the suit for maintenance for the time being, on condition of the husband putting his wife in a separate portion of his house free from the domination and authority of his mother, the wife being allowed to cook 'for herself and himself' and treating her with love and consideration due to the wife. The wife was on her part enjoined to behave towards her husband with love and affection due to a husband. (The underlining (here into) is mine).
(3a) But this attempt to prop up the marriage home has failed. The subsequent proceedings would show that the attempt of the parties to comply with the decree was in letter only and not in spirit. This Court had directed the husband to bear his own costs in both the suits and pay the defendant's costs in the suits and also pay the court-fee due to the Government on the wife's plaint in the maintenance suit. Without accepting the wife's offer to return gracefully, the husband went up in appeals against the decree as to costs in the two suits and it was with the litigation pending between the parties that one finds exchange of lawyer's notice for compliance with the decree regarding restitution. Under Ex. B.6 dated 9-3-1952, the plaintiff went to the husband's house to join him. The subsequent development show that the parties had failed to patch up the differences that had arisen earlier. It is needless to make much of the fact that the husband refused permission to the plaintiff's mother to visit the plaintiff in his house or permit the mother's sister who had accompanied her on 31-3-1952 to stay on and that he was rude to her and drove her out. But the fact remains and it is admitted that the plaintiff was given accommodation in a place which had no doors, and that he never slept with her during the days she stayed with him on this visit till she left him on 19-4-1952, the husband taking from her the letter Ex. B. 1, where it is stated that she did not like to live with her husband and was going out of her own free-will.
The learned trial Judge observes that from the admissions of the husband it was clear that he had not fulfilled marital duties to his wife between 31-3-1952 and 19-4-1952, the day on which she left him. The trial Judge would also observe that he has not technically fulfilled the terms by which he was allowed to have restitution of conjugal rights and that he was cold and unreceptive and evidently, the above made the position of the plaintiff in his house intolerable and unbearable. He found that if she had left him on 19-4-1952, he was responsible for her departure, that thereafter, he had not cared to go to his wife and call her once again to come and live with him and that the desertion was on his part. Holding that the husband was not anxious to lead a married life with her and felt that his duty as a husband ended in merely providing shelter without privacy and food to her, the trial Court observed it was obvious that he had not erased out of his mind his suspicion regarding her unchastity. The trial Court held that he was guilty of desertion towards the plaintiff and I the plaintiff left the defendant, the same must have been due to bad treatment accorded to her. Taking into consideration that he was possessed of house property in the city from which he is getting rents and besides he was a violinist in the All India Radio, the maintenance was fixed at Rs. 45 a month and a decree for maintenance was passed accordingly.
(4) On appeal, the learned Additional Judge, City Civil Court, after referring to the evidence of reality, held that there was no evidence of any cruelty which is such as to render it unsafe for the plaintiff to live with the defendant. It is observed that merely on the ground that the defendant was indifferent to the plaintiff and the portion of the house allotted to the plaintiff was not comfortable, she was not entitled to bring the suit and that the plaintiff had failed to prove that the defendant was guilty of such cruelty towards her as would render it unsafe for her. As regards desertion, it was held that as the letter Ex. B.1 had been executed by her of her own accord, the defendant was not guilty of desertion. On the findings the appeal was allowed and the suit dismissed with costs.
(5) Now in second appeal, it was contended by the learned counsel for the plaintiff, that the approach of the lower Court to the question of cruelty and desertion is erroneous. Whether certain facts constitute cruelty or not, has to be considered in the background of the attendant circumstances and not by themselves. Where in one case, a particular act may constitute cruelty, it may not be so in other circumstances. It is also contended that apart from the question of proof of cruelty or desertion, the Court will have to consider whether the wife was justified in living apart and whether she could, on the facts, resist a claim for restitution of conjugal rights. The failure of the lower appellate Court to consider the case from this aspect of the matter, it is said, vitiates the judgment. Cruelty in matrimonial causes cannot be given a comprehensive definition.
(6) The Hindu Married Women's Right to Separate Residence and Maintenance Act 1946, which admittedly governs this case entitles a married woman to separate residence and maintenance from her husband, if he is guilty of such cruelty towards her as renders it unsafe or undesirable for her to live with him and after setting out certain other grounds for separate maintenance, the Act provides also that she would be entitled to separate residence and maintenance for any other justifiable cause.
(7) In Venkatapathi Nayani Varu v. Puttamma Nagith, 71 MLJ 499: AIR 1936 Mad 609 it is held that cruelty and abandonment are not the only grounds on which separate maintenance could be allowed to a wife. These two grounds are no doubt enumerated, but it is also recognised that wherever the wife lives away from the husband for justifiable reasons, she is entitled to separate maintenance. The test enunciated in an earlier case that the grounds which would be available to a wife to defeat a suit for restitution of conjugal rights would also entitle her to live apart from her husband and claim separate maintenance, is reaffirmed.
(8) There is force in the contention of the learned counsel for the appellant that there has been no proper approach to the consideration of the questions involved. It is not clear from the judgment whether the learned Additional Judge when stating that there was no evidence of any cruelty which would render it unsafe for the plaintiff to live with the defendant, was considering only the safety of the person. Cruelty can take diverse forms. Merely not providing sufficient comforts or amenities and even not showing affection, may not amount to cruelty. But if the acts are intended to convey that impression that the wife is not wanted and her presence is resented, they would amount to cruelty. Negative conduct such as neglect or want of affection or even want of consideration would not be cruelty. Even extracting heavy work may not amount to cruelty, if it was intended to reduce the wife to subjection. But the continuance of a course of conduct aimed at the wife even though they are not violent acts, could amount cruelty or at least justify her living apart. In determining what constitutes cruelty or circumstances that would justify the wife in living apart. one has to keep in view the history and facts of the particular case.
(9) Examined on the above lines, it is clear that the trial Judge was justified in holding that the husband was guilty of cruelty and that when the wife left the house, it could not be held to be voluntarily. It is unnecessary to consider whether there has been desertion or abandonment by the husband. It is sufficient to say that it is clear from the evidence that her presence wad resented, and the cold reception accorded to her, when it was sought to comply with the decree for restitution of conjugal rights, was meaningful and intended to bring home to her that she was an unwanted wife. It has to be noted that while the decree provided that she should be allowed to cook for herself and himself, admittedly she was made to cook separately for herself in a separate room, the husband eating the food prepared by the mother. He provided her with a habitation but it is clear he did not intend cohabitation. It is difficult to lay the whole blame for the situation wholly on either of the spouses. But it is evident that when she left the husband's house on 10-4-1952, it must be because that she found life miserable, and the calculated exclusion unbearable. In the notice issued on behalf of the wife prior to the institution of the suit, it has been stated that she was all along expecting her husband to take her back, maintain her and also perform the marital obligations of her husband and that on the contrary, he had been keeping quiet, that she is, therefore led to infer that he had no intention of maintaining her and that he has deserted. There was no reply to this notice and the suit was instituted long after on 23-1-1956. In the view I take that there are justifiable circumstances for the wife to live apart from her husband, an aspect which has not been considered by the appellate Court, it is unnecessary to consider whether the facts would constitute abandonment or cruelty in the strict sense of the term. The learned Additional Judge, in the circumstances, erred in reversing the decree of the trial Court awarding maintenance. The trial Court, it may be stated, has considered the case from all angles and reference also has been made to a decision in Seethayamma v. Venkataramana, : AIR1940Mad906 which followed the decision in 71 MLJ 499: AIR 1936 Mad 609 above referred to, for the view that if the husband is found to be not entitled to a decree for restitution of conjugal rights, the wife should be held entitled to a decree for separate maintenance. It is clear from the facts that the husband did not intend that the plaintiff should take and have her place in his house as his wife. His attitude would be sufficient justification for the wife declining to live in his house and suffer in silence to the detriment of her health.
(10) On the question of quantum of maintenance, neither party has challenged the decree given by the trial Court, awarding maintenance at the rate of Rs. 45 per month, for the past and future maintenance.
(11) In the result, the second appeal is allowed with costs and the decree of the trial Court restored. There will be no order as to costs in the lower appellate Court. Respondent will pay the court-fee due to Government. No leave.
(12) Appeal allowed.