1. O. P. No. 99 of 1962 out of which the appeal arises was instituted by the respondent-husband Krishnaswami Achari against the appellant, his wife Kanna alias Mahalakshmi Ammal under S. 9 of the Hindu Marriage Act for a decree for restitution of conjugal rights. The learned Subordinate Judge of Ramanathapuram had decreed restitution; and on appeal the learned District Judge of Ramanthapuram had confirmed the said order. Hence the appeal by the wife.
2. The marriage between the parties took place in the year 1951 and they were both living together amicably in the adjacent houses divided only by a partition wall and the appellant gave birth to two daughters, the last of whom was born in the month of Avani, 1959, in the house of the appellant's parents.
3. The respondent-husband claims that, after the birth of the second child, the appellant did not go back tot he respondent's house, as a result of a dispute between her father and the respondent in respect of a partnership business which they were carrying on before. The respondent's attempts to persuade the appellant a number of times from 1959 onwards to come and live with him have failed and the intervention of Saravana Perumal Pillai and two other gentlemen have also proved ineffective. Thereupon the respondent filed O. P. 84 of 1960 for restitution of conjugal rights and the appellant in here turn filed a suit for maintenance. The O. P. and the suit were however not pressed in order that the parties might try to find ways and means for settling the difference among themselves; but unfortunately the efforts have proved futile.
4. The respondent has filed the present O. P. 99 of 1962 for restitution alleging that the appellant had, on the evil advice of her father, not rejoined him and that she had withdrawn herself from him society, without any reasonable excuse.
5. The application is resisted by the appellant on various grounds. It is alleged that, as a result of the misunderstanding which arose between the respondent and her father in respect of the partnership business, the respondent was ill-treating her and was compelling her to execute in his favour a settlement of all the properties which she had obtained from her father; and as she refused, he quarrelled with here frequently and finally drove her out of his house and she apprehended danger to her life if she went back to the respondent. The respondent was also keeping one Ramasubbammal as his concubine and was, besides, addicted to liquor and gambling. Further her state of health was such that she could not have conjugal relationship with the respondent without danger to her life.
6. I may straightway dispose of the plea that the respondent was keeping Ramasubbammal as his concubine and was also addicted to liquor and gambling. It appears to me clear that these contentions are false and have been thought of at this belated stage with a view to reinforce her contention of cruelty.
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7. It is seen that, in spite of her bad health since the birth of the first child, the appellant had cohabited with the respondent and had produced a second child subsequently; and it is not suggested that the delivery of the second child had worsened her physical condition or had endangered her life. It appears to me that the doctor R.W. 7 had taken an unnecessarily gloomy picture about the physical condition of the appellant.
8. I shall now refer to the law on the subject, S. 9 of the Hindu Marriage Act, 1955 is worded thus.
'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, 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.
(2). Nothing shall 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.'
9. S. 23(1) provides that, in any proceeding under the Hindu Marriage Act, whether defended or not, the court shall decree the relief prayed for, if any of the grounds for granting relief exists and the petitioner is not in anyway taking advantage of his or her own wrong or disability for the purpose of such reliefs; and s. 23(2) states that, before proceeding to grant any relief under the Act, it shall be the duty of the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of because, to make every endeavour to bring about a reconciliation between the parties.
10. In Gurdev Kaur v. Sarwan Singh, , Grover, J., (as he then was) has held that although subsection (2) of Section 9 of the Hindu Marriage Act confines the pleas in defence only to those grounds which can be taken under Sections 10, 12 and 13 of the Act, sub-section (1) itself lays down certain conditions which must be fulfilled before a decree can be granted, that the first requirement of sub-section (1) seems to incorporate the rule accepted in English law that, while granting restitution, it has to been seen whether the respondent has a reasonable causes for leaving the petitioner; and the court has discretion to refuse relief if reasonable cause exists even in the absence of matrimonial offence, that the test, however, as to what constitutes reasonable cause would vary with the circumstances of each case and that it will have to be applied in the changed social conditions as they obtain today and not with the rigid background of the tenets of the old texts of Manu or other Hindu law givers. The learned Judge has further observed that, where the husband is guilty of conduct which falls short of legal cruelty in the sense that it is not cruelty of the kind mentioned in Section 10(1)(b) of the Hindu Marriage Act, but his misbehaviour or misconduct is such that the wife is fully justified in separating herself from him, the husband cannot succeed in his petition under Section 9, as it will not be possible for the court to say that the wife has withdrawn herself from his society without reasonable excuse, and that, in a case of that nature, the petition shall fail not because of any defence set up by the wife under Section 9(2) but it cannot succeed on account of the non fulfilment of one of the essential ingredients of sub-section (1) of Section 9. He has also further observed that, if the petitioner has by his own misdeeds forced his spouse to leave him, he cannot be allowed to take advantage of his own wrong and ask for the assistance of the court to petuate his own wrong doing. The learned Judge has quoted Mallawa Siddappa v. Shiddappa Bhimmappa, : AIR1950Bom112 in which it was observed that, if on equitable grounds it is found that the conduct of the husband is such that the wife consistently with her self-respect and with due regard to her position as a wife cannot live in the house of her husband, she can claim separate maintenance, and has observed that the case, among other things, deciding what is justifiable cause under the Hindu Married Women's Rights to Separate Residence and Maintenance Act, 1946 would become relevant and helpful for deciding the meaning of the expression 'reasonable excuse' under Section 9(1) of the Hindu Marriage Act.
11. In Alopbai v. Ramphal, : AIR1962MP211 , a Division Bench of Madhya Pradesh High Court has observed thus:
'Under sub-section (1) of Section 9 the court must be satisfied that the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, that the statements made by the petitioner under Section 9 are true, and that there are no legal grounds for refusing the application. Even when these conditions are satisfied, it is in the discretion of the court whether or not to pass a decree for restitution of conjugal rights. The discretion given in passing a decree for restitution of conjugal rights has to be exercised very cautiously and after deliberation. A decree for restitution of conjugal rights presupposes that the parties will make an endeavour to live together peacefully and happily. Where the circumstances of the case disclose that there is no possibility of the parties living together even in a state of happiness, a decree for restitution of conjugal rights would be unjustified. In marital matters it is the attitude of the mind and the feelings that count and no decree of the court can force the parties to live together. It is because of his that Section 23(2) provides that, before granting any relief under the Act, it shall be the duty of the court in the first instance to make every endeavour to bring about a reconciliation between the parties. Section 23(1) also enjoins that in any proceedings under the Act, whether defended or not, if the court is satisfied with the regard to the point enumerated therein, then and then alone but not otherwise the court shall decree the relief claimed'.
12. In Sm. Rebarani v. Ashit Sen, : AIR1965Cal162 a Division Bench of the Calcutta High Court has laid emphasis upon the fact that the court can decree restitution only in case the husband succeeded in satisfying the requirements of sub-section (1) of Section 9 and that the failure of the wife to substantiate her defences open to her under sub-section (2) of that section will not be of any serious consequence. The learned Judges have observed that, in that case, the husband has pledged his own oath for proving that he made attempts to bring back his wife, but those attempts were unsuccessful either because of the wife's father's or because of the wife's own attitude, that he himself stated that those attempts were made by himself and also through two other persons, Malay and Sing, that neither of those two persons was, however, examined by the husband and that no explanation appeared on the record for their non-examination and that, in those circumstances, it is difficult to accept the husband's uncorroborated testimony on the above points and that, if that evidence be not accepted or accepted as sufficient to prove that the husband made attempts to bring back the wife, his case that the wife was staying away without reasonable cause, which it is incumbent upon him to prove under sub-section (1) of Section 9, would fail. The learned Judges have further observed that the allegation of cruelty and torture made by the husband in that case was only by way of an additional or alternative defence, and would not, necessarily, affect the above position.
13. In Bejoy v. Aloka, : AIR1969Cal477 , a Division Bench of the Calcutta High Court has observed that the court may decree restitution of conjugal rights, not that it must, as is that mandate of Section 9(1), provided that the spouse can successfully claim (1) tat the wife has without reasonable cause, withdrawn herself from his society, (2) that the court was satisfied about the truth of the statement made in the petition for restitution of conjugal rights and (3) that there was no legal ground why such petition should not be granted and that this was independent of the pleas available to wife under Section 9(2). The learned Judges have relied upon the decision of a Division Bench of the Calcutta High Court in : AIR1965Cal162 cited above where the defence of the wife as to cruelty and torture was disbelieved and yet the husband's petition for restitution of conjugal rights failed because of his failure to prove that he made attempts to bring back the wife to the matrimonial home. The learned Judges have observed that the allegation made by the husband in the petition that Aloka had left the matrimonial home towards the first week of May, 1958, the truth being that he himself took her to her mother's place for confinement and that would not amount to leaving the matrimonial home with the intention of deserting the husband. The learned Judges have further observed that the petition did not contain any reference to false and reckless allegations made against the wife and his people proved by the letters which the learned Judges have reviewed in that judgment and that the court was satisfied that the statements made in the petition were false.
14. The law is thus clear. In an action by the husband for restitution of conjugal rights against the wife, the latter will be entitled to urge in answer only those ground which can be urged in support of an application for judicial separation or divorce or for declaration that the marriage was null and void. Failure on the part of the wife to substantiate her defences will not however entitle the husband to judicial separation automatically. The Court will normally order restitution (1) if he proves that the wife has, without reasonable excuse, withdrawn from his society, (2) if statements made by him in the application are true and (3) if there is no legal ground why is prayer should not be granted. The question whether the wife had or had not a reasonable excuse for withdrawing herself from the society of her husband will depend upon the circumstances of each case. 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. A woman of modern times is entitled to insist that her husband should treat here with dignity and self-respect befitting the status of a wife and that her life with her husband will be peaceful and happy. Times have radically changed and modern husbands can no longer expect the forbearance, patience and complete effacement of personality shown by the legendary Arundhahadhis; and as observed by Grover, J., (as he then was) in Gurdev Kaur's case, cited above, it will be totally inappropriate to apply the standard expected by Manu or other ancient Hindu law givers in determining what would constitute reasonable cause in modern times. Even if the husband satisfies the condition 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.
15. In applying these principles I have come to the conclusion that the appellant is justified under the circumstances in refusing to go back and live with the respondent. No doubt, I have upheld the finding of he courts below that the conduct of the respondent would not amount to cruelty justifying any apprehension that the appellant's life will be in jeopardy, if she has to revert back to marital life. The appellant's story that the respondent had beaten or pulled her by the hair and violently pushed her out of the house is not substantiated and appears to be exaggerated. Nor am I impressed with her case that her poor health would not permit her to resume cohabitation with the respondent with jeopardising her life. I am, however, clear that the conduct of the respondent has made it impossible for her to expect a quiet, care free and happy life any more in his house. Admittedly the respondent has been ousted from the partnership business with the appellant's father, evidently started by the later with a view to help the respondent; and the feelings between the respondent and the appellant's father are admittedly bitter to the extreme. The respondent has conceded that he has sold away a house and a shop even against the advice of his father and it is not improbable that he had been pestering the appellant as claimed by her to settle her valuable properties on him and that she had, ignoring his protest, settled the same on their children. It must be remembered that it was the appellant who had first sought the assistance of the court by filing the suit O. S. No. 122 of 1960 in the court of the District Munsif, Sathur claiming maintenance for herself and her children. The plaint Ex. A-4 was prepared on 6-7-1960 and was presented before the court on 8-7-1960. The notice Ex. A-2 sent by the respondent herein calling upon the appellant to resume cohabitation with him is dated 11-7-60; and it can therefore be presumed that the respondent had been stirred into action for the first time only on coming to know about the suit for maintenance referred to above. The reply Ex. A-3 was sent by the appellant on 25-7-1960. In the reply notice she had definitely averred that, because of the ill-feeling between her father and the respondent, the respondent had ill-treated her and because she refused to transfer the properties in his name, ultimately turned her out of the house. I am satisfied that the notice Ex. A-2 sent by the respondent and O. P. No. 84/60 subsequently filed by the respondent have been resorted to as counterblast to the appellant's suit for maintenance.
16. I am prepared to believe the appellant and her witnesses when they say that she returned to the respondent's house a month after the delivery in Avani 1959; and it sound extremely possible that the respondent had been nagging and frequently worrying the appellant to comply with his demand for settling her properties in his favour. Admittedly he is chagrined against the appellant's father because of his severance from the partnership business and it is extremely likely that he transferred that bitterness which he had entertained towards the father to the daughter. The relationship between the parties appears to have been strained to the breaking point and this is clear from the fact that, even after the parties had mutually withdrawn the O. P. proceedings and the suit for maintenance, the appellant has refused to go back to the respondent's house. It is obvious that the attempt at negotiation had borne no fruit at all and it is not disputed that after the first round of the bout the parties have resumed their fight by the respondent instituting the present O. P. and the appellant instituting a second suit O. S. No. 143 of 1961 for the maintenance of her children. It is obvious that it has become a practical impossibility for the parties to live together and I am satisfied that it will be totally improper under the circumstances, to order restitution.
17. In the result, the appeal is allowed and the order of the courts below are set aside. O. P. No. 99 of 1962 filed by the respondent for restitution of conjugal rights is dismissed. Each party will bear his or her own costs throughout.
18. Appeal allowed.