1. This appeal arises out of proceedings under the Hindu Marriage Act [25 of 1955). The appellant is the wife of one P. Srinivasa Mudaliar. He filed an application for restitution of conjugal rights. This was resisted by the wife, the appellant herein, who has no objection to live with, her husband, but she has been subjected to cruelty and that it is, therefore, unsafe, to live with her husband.
2. The lower court, after considering the oral and documentary evidence in the case, gave a finding that there was no cruelty on the part of the husband and as such the appellant (wife) was bound to go and live with the husband, and directed the wife accordingly, and ordered the application as prayed for by the husband. It is against this order of the restitution of conjugal rights that the present appeal has been filed by the wife.
3. Briefly stated, the facts are these. The appellant was married to the respondent herein on 4-2-1957. The respondent seems to be an educated man. He is working as an accountant in the Southern railway. Soon after the marriage, the husband and wife seem to have lived happily for some months. When the sister of the husband, who seems to have some influence over him, returned from her pilgrimage, troubles started in the family. Domestic life of the couple was ruined. The appellant was treated cruelly by both the husband and his sister, with the result, she left her husband's house on 27-104957. Immediately, she gave a notice, Ex. B. 4, alleging in detail the cruel treatment meted out to her during her stay in the husband's house by both the husband and his sister. She also demanded maintenance amount of Rs. 100/- per month, as it was not possible to live with him. Her request was not complied with, and she therefore filed a suit for maintenance, Section 599 of 1958 on the file of the City Civil Court, Madras. However, due to intervention of mediators, the case was compromised and a consent decree was passed, in and by which, without prejudice to the contentions of the parties, the husband (respondent herein) undertook to get the wife nominated In respect of the provident fund account In the Southern railway, he also undertook not to gift away the property No. 57 Sanjeevarayan Koil St, Washermanpet, Madras to any one. He also undertook to make arrangement to keep his sister separately ire another house by providing separate residence. He further undertook to treat his wife well.
This consent memo was filed on 13-10-1958. After this, parties seem to have lived together for one year. But, once again trouble started between husband and wife, with the result she was forced to leave the house of the husband on 6-10-1959. According to the wife, she was suddenly asked to clear out of the house with her bag and baggage. She went to the police station and gave a complaint about the ill-treatment meted out to her. She also gave a notice, Ex. B. 11 dated 10-111959 alleging in detail as to how she was cruelly treated! and finally driven out of the house by the husband. Unfortunately, the respondent herein, the| husband, did net care to send a reply to this notice. On the other hand;, after waiting for sufficient time, the husband filed art application for restitution of conjugal rights.
4. Learned counsel for the respondent contends before me that, once the matter has been compromised and a consent memo filed in the suit, O.S. 599 of 1958;, the court will have no jurisdiction to consider the cruelty meted out to the wife before the compromise, and there was no sufficient proof that cruelty was meted out to her after the compromise. I am net able to agree with this contention. The consent memo filed by the parties started with the words 'without prejudice to the contentions of the parties'. She compromised only with the fond hope of living with her husband. But unfortunately once again the husband behaved in a most cruel manner;, and it was not possible for the wife to live with her husband.
In this connection, it will be useful to refer to a passage from Mullah's Hindu Law, 12th Edn. at page 884:
'In case, for instance, of condoned cruelty of m serious nature, when the law speaks of condonation and revival, it means that the offence is condoned on the condition that there shall be in the future a proper compliance with the matrimonial decencies and duties, and a person who goes back to live with his or her spouse' goes track on that implied condition alone. It can hardly be said that there should be a repetition of the whole course of ill-treatment or that there should be even the same kind or degree of ill-treatment. The homely metaphor that the camel needs protection from the last straw which is to break its back or even from the penultimate' straw which threatens to do so has not remained Judicially unnoticed and may perhaps serve to explain the principle. The test would be: Are the various acts of subsequent breaches of conjugal kindness such as to make life between husband and wife impossible or tend to make it impossible?'
On the evidence on record, in this case, I' have got the impression that on account of the husband's conduct; the appellant (wife) cannot live with him in his house, unless he creates confidence in her. I summoned the parties to my o chambers. 1 asked the wife whether she would be willing to go and live with her husband and she expressed her willingness to join her husband; but the' husband refused to take her back, on the ground that already an application has been filed by him for divorce. When such is the attitude of the husband, it is not possible for me to consider that his application for restitution of conjugal rights was a bona fide one. The judgment and decree of the lower court are therefore set aside.
5. The appeal is allowed with costs throughout. A The appellant will be at liberty to take appropriate proceedings for maintenance.