1. This civil miscellaneous second appeal is filed by the husband against the order of the District Judge, Madurai dismissing the petition for restitution of conjugal rights against his wife. The trial Court allowed the petition for restitution of conjugal rights. But on appeal the lower appellate Court dismissed the petition for restitution of conjugal rights.
2. The main ground on which the petition for restitution of conjugal rights is based, is that, in spite of his earnest attempts to bring we wife to his house, the wife, without reasonable cause, refrained from joining him. The defense is that the wife was never properly treated, that she was forced to file a maintenance suit against the husband which resulted in a compromise decree, that, even thereafter, the husband did not take any effort to act according to the compromise decree, and that, as a result of it, she could not join the husband. It has also been stated that the petition for restitution of conjugal rights was filed after an inordinate delay.
3. The facts, briefly, stated, are: The appellant and the respondent lived as husband and wife for a period of five months after their marriage and thereafter, misunderstanding arose between them. The wife filed a maintenance suit which resulted in a compromise decree. The decree provided that the husband should take on rent a separate house for the residence of the wife and himself and lead the proper marital life. It was also provided in the decree that, in case the husband rendered joint living impossible by cruelty or circumstances for joint marital life disappeared, he should pay maintenance of Rs. 20 per mensem to the wife from the date of failure of joint life. In pursuance of this compromise decree, attempts were made by the husband as well as the wife of secure a house, so that the husband and wife could live together. The attempts failed and the wife took out execution of the maintenance decree in 1961, 1964 and in 1967.
4. That there were some attempts by both sides, cannot be denied. But the plea on behalf of the wife is that the husband was not willing to pay the advance towards rent required, and that he was always demanding his father-in-law to pay the advance. The lower appellate Court accepted the case of the wife that the husband did not make real attempts to take on rent a separate house of the residence of the husband and the wife. This finding cannot be interfered with in second appeal. Mr. O. V. Baluswami, the learned counsel for the husband, submitted that material fact was not taken into account by the lower appellate Court and that would be a circumstance which the court should consider. He submitted that, even on the admission of the wife, a house was purchased by the husband in 1962 and an invitation by the mother-in-law to the wife to join the husband was not accepted. There is no doubt of the admission by the wife to this effect. But, in appreciating this admission in the background of the previous history, it should be noted that the trouble arose because of the presence of the parents of the husband. The compromise decree provided that the husband should take a separate house for the residence of him and the wife. The evidence given by the husband that he invited the wife in 1964, was not accepted by the lower appellate Court. In the circumstances, even if the mother-in-law had invited the wife to come and join the husband, that would not be a circumstance which would be enough to find that her refusal to live with the husband is unjustified. I am satisfied, on the facts of this case, that there are no grounds for not accepting the finding of the lower appellate Court that the husband has not succeeded in establishing that the wife, without reasonable excuse, had withdrawn from the society of her husband.
5. This finding leads to the question of law raised by the learned counsel for the husband-appellant that, after passing of the Hindu Marriage Act (Act 25 of 1955), in an action for restitution of conjugal rights, the grounds available to the wife in defense are those that are available in resisting application for judicial separation or for nullity of marriage or for divorce. Strong reliance is placed on Section 9. clause(2) which provides-
'Nothing shall be pleaded in answer to a petition for restitution of conjugal rights which shall not be a ground for judicial separation or for nullity of marriage or for divorce.'
On reading Section 9(2) alone, this contention may appear to be sound. But clause(1) and (2) of Section 9 will have to be read together. Section 9(1) provides that, when either the husband or the wife has, without reasonable excuse, withdrawn 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. This sub-section, therefore, requires that, before an aggrieved party applies by a petition for restitution of conjugal rights, he or she should prove that the other party had, without reasonable excuse, withdrawn from the society of him or her. If this condition is satisfied, when the other party enters on his or her defense, the grounds that are available to the party are those mentioned in Section 9(2). Before the stage of defense is reached, it is incumbent upon the person applying for restitution of conjugal rights to establish that the other party has, without reasonable excuse, withdrawn from the society of him or her. The defendant in an action for restitution of conjugal rights is entitled to insist on the applicant proving that the defendant has, without reasonable excuse, withdrawn from the society of the applicant. In support of his contention, the learned counsel for the appellant strongly relied on the decision of a Bench of the Andhra Pradesh High Court in Annapurnamma v. Apparao, : AIR1963AP312 . In the view I take, namely, that a reading of clauses(1) and (2) of Section 9 together clearly indicates that it is incumbent upon the party applying for restitution of conjugal rights to prove that the other party has, without reasonable excuse, withdrawn from the applicant's society, I find myself unable to agree with the decision of the Bench of the Andhra Pradesh High Court.
6. The lower appellate Court has dismissed the application of the husband also on the ground that the application was filed after an inordinate delay. The compromise decree was in 1960. The attempts made to secure a house for joint living of the husband and the wife was in 1961. After the failure of the efforts to secure a house for joint living of them in 1961 till 1967 there were no attempts made and there was a delay of six years. The lower appellate Court has rightly found that there was a considerable delay in filing the application for restitution of conjugal rights and this would disentitle the husband from getting the relief of restitution of conjugal rights.
7. In the result, the appeal is dismissed with costs. No leave.