Bijayesh Mukherji, J.
1. The history of this matrimonial litigation by the husband Bejoy Daw, now appellant, against his wife Aloka Daw, now respondent, for restitution of conjugal rights divides itself into four stages-
I.August 14, 1957, when Bejoy aged 30 or thereabouts and Aloka aged 20 or thereabouts, Hindus both, were married according to Hindu rites, to May 1S58, when Bejoy reached Aloka from the matrimonial home to her mother's place at 92-A Bhupendra Bose Avenue, Calcutta, for her impending confinement.
II. February 3, 1958, from when Bejoy started inflicting upon Aloka vitriolic letters, to November 26, 1958, when Bejoy sent his younger brother with a chit to Aloka, making a peremptory demand for return, through the bearer of the chit, of all ornaments and articles given her by all his people, threatening her with dire consequences in case of non-compliance with such ultimatum, and carrying out the threat by having swooped down upon his wife's place an act which led to a rough and-tumble or maramari, as both Bejoy and Aloka, in the midst of their so many differences, put it in their evidence. During this period, to be precise, on or about July 20, 1958, Aloka was delivered of a female child,
III. August 8, 1860, from when Bcjoy started writing one letter after another, mostly to Aloka, one to her eldest brother, and one to her mother, pleading for Aloka's return to the matrimonial home, with the precaution of sending such letters by registered post with acknowledgment due and keeping a carbon copy of each to March 28, 1962, when Bejoy's matrimonial suit No. 2 of 1961 against Aloka instituted on January 3, 1961, for judicial separation, was permitted to be withdrawn, with costs; Aloka pressed for and the judge granted.
IV. April 1, 1962, from when Bejoy took to writing letters again, mostly to Aloka and one to her brother Mrityunjoy Datta, C/o. Reliance Stores (Pvt.) Ltd., 92-A Bhupendra Bose Avenue, Calcutta, with the same type of double precaution: (i) by registered post with acknowledgment due and (ii) by keeping a carbon copy of each, the refrain of which letters is that Aloka, whose return to the matrimonial home is longed for, should come back soon enough, to September 4. 1962, when the present cause, matrimonial suit No. 73 of 1902, for restitution of conjugal rights was instituted--a cause which has been dismissed and out of which the appeal, we are now adjudicating, has arisen,
2. The first stage presents no problem. The correspondence that is seen in and about this period is quite the normal exchange of letters to and from between Bejoy and Aloka, the newly married couple. Here is a resume of such letters, interspersed with comments, resting on evidence:
3. [After giving the resume of the letters, their Lordships proceeded]. Such contemporaneous letters speak for themselves. Leaving aside periodic small rubs -- and a married life which is free from any such rub must be rare indeed
-- what we see is a happy couple, one pining for the other. So, up to the end of December 1957, there happened little to break the home, no matter what the mutual recriminations of Bejoy and Aloka have been in the prior litigation
--matrimonial suit No. 2 of 1961--or here. Taking our stand on this, after we had had an exhaustive opening from Mr. Bankim Dutt, appearing for Bejoy, we proceeded to do our duty, in terms of Section 23, Sub-section (2), of the Hindu Marriage Act, 25 of 1955, to bring about a reconciliation between Bejoy and Aloka, in the fond hope that they would go back to those happy days of August-December 1957 and start their life over again from there, completely blotting out from their mind all that had happened meanwhile, irrespective of the right or wrong of either. We, therefore, invited them to our chamber, putting aside their counsel, as indeed counsel themselves wanted us to do, and pleaded with Bejoy and Aloka to give their married life a trial at the least for a month, to start with. But our pleading went in vain. Aloka was in dread of Bejoy who, she apprehended, would arrange things in such a manner that it would facilitate his having a divorce on false allegations. She therefore, expressed her determination not to return to the matrimonial home even for a month. Bejoy addressed her, with our permission, and pointed out to her that three lives -- her own, Bejoy's and the child's--were being ruined by her intransigence. But she remained adamant, because for her husband's past conduct and utterances. Since that was troubling Aloka, we suggested to Bejoy whether or not he could see his way to express sincere regret for what she was feeling sore about. Bejoy said; 'If you so direct, I am ready to express my regret.' We at once made it clear, direct we would not, for reconciliation is reconciliation, not coercion, far less judicial coercion. But an expression of regret would even not move Aloka a whit, because she was unable to rely upon her husband's word. So, it was futile to proceed further and, much to our disappointment, our endeavour to bring about a reconciliation between the parties failed. For that, we blame neither Aloka nor Bejoy. If Aloka is within her right to refuse to return to the matrimonial home, Bejoy is equally within his right not to go further than he has gone. We, therefore, enter into the merits of the appeal with an open mind, and without the slightest prejudice to either, for the stance each takes, during our attempt to effect a reconciliation.
4, We now reach the second stage of this matrimonial litigation. There appears to be no better way of describing what happened during this period than noticing the telling contents of the letters and the material events, in order of date.
5-17. (After noticing the telling contents of letters, their Lordships continued:) This is the letter of ultimatum Bejoy's brother carried to Aloka. But it yielded no result, though Bejoy spared no effort to hurt her most, by demanding back even the iron bangle, which a Hindu woman, with her husband living, cannot go without, in this part of the country, no less by speaking, with a fiendish delight of his now wife to come. Indeed, it was incapable of yielding any result. Because, most of the ornaments and things Aloka had left behind in the matrimonial home, as Aloka says. Quite a believable version. Sure enough, she did not bring them all along with her when she came to her mother's place for confinement. And the few ornaments she had on her person she could not part with then, no matter what the ultimatum was and who the bearer of that nasty chit was.
18. The matter did not end there.
Bejoy came to his wife's place and there was a rough-and-tumble, Bejoy attributing it to Aloka's brothers having not allowed him to see her and assaulted him, and Aloka attributing it to the attempt on the part of Bejoy to snatch sway the ornaments off her person and her brothers intervening, though she admits, she heard subsequently of such maramari. Not that she had seen it, though she had seen her brother later with a bandage on. Whichever version is true, that there was a scene, a nasty scene, which Bejoy threatened in that chit to create, is manifest.
19. Then, there followed a lull. No more of vituperative letters, and for a little more than eight months. Bejoy resorted to another method. And this brings us to the third stage of this litigation. From August 8, 1960, to September 19, 1960, he wrote eight letters six to Aloka, one to her mother and one to her Barda (eldest brother): exhibits 1 (e) and 1 (n) to Aloka, 1 (m) to Aloka's mother, 1 (k) to Aloka again 1 (i) and 1 (1) to Aloka's Barda, 1 (j) and 1 (h) to Aloka once more. Very nice letters are they if one has to go by the language in which they are couched, Aloka's return home with the child is the theme of such letters, expressed in different ways. But not a word do we find here expressing genuine regret for the nauseating letters reviewed above. And then Bejoy was cautious enough to send such letters by registered post with acknowledgment due, as is evident from the postal receipts, exhibits 3 series, and what Is more, to keep carbon copies thereof: vide the exhibits of 1 series just mentioned. It needs no imagination to see that these are all sham letters by which Bejoy was preparing the ground for a matrimonial cause, which indeed he did raise for judicial separation on January 3, 1961, not even four months after the last letter to Aloka on September 19, 1960, ext. 1 (h). The plaint of that cause (matrimonial suit No. 2 of 1961) is exhibit B.
20. During the carriage of that suit, on March, 23, 1962, Aloka gave out on cross-examination:
'I was willing to go to my husband's house before this suit. But how can I there now after this suit and after all the allegations that he has made against me?'
vide her recorded evidence in that trial, exhibit 2.
By then, i. e. March 23, 1962, all those vitriolic loiters of Bejoy, reviewed above, were exhibited. Indeed, they were exhibited on the day previous : March 22, 1962, as the exhibit marks with dates over the signatures of the trial judge go to show. More, she had had knowledge of those revolting letters, as her averment in paragraph 5 of her written statement, verified on February 15, 1963, goes to show -- an averment which is true to her knowledge. It is, therefore, not right to say, as has been said on behalf of the appellant, that Aloka knew nothing of the nauseating contents of such letters which were withheld from her by her brothers for some time only.
21. Thereupon, on Bejoy's petition, praying for withdrawal of his matrimonial suit for judicial separation (suit No. 2 of 1961), the judge allowed him to withdraw it, but costs, Aloka had pressed for : vide order No. 7 dated March 28, 1962, exhibit D.
22. Here ends the third stage of this litigation. Only four days later, begins the fourth stage. From April 1, 1:, ,2, Bejoy started writing letters again to Aloka, exts. 1 (d), 1, 1 (a), the last bearing date May 25, 1962, and also Aloka's brother Mrityunjoy, exts. 1 (g) and 1 (e), one being almost a duplicate of the other, and bearing the same date, July 10, 1902. The burden of such letters is that for the sake of the innocent child Aloka should come back to the matrimonial home, irrespective of what happened in the past. The same precaution again of sending such letters by registered post with acknowledgment due and of keeping carbon copies thereof. Bejoy was preparing the ground again for another matrimonial cause, so came his lawyer's letters dated August 6, 1962, exts. 1 (f) and A (6), threatening Aloka with proceedings for restitution of conjugal rights. And on September 4, the present proceedings for just that were instituted,
23. Such being the history of this unfortunate litigation, it is contended on behalf of the appellant, what has he, the appellant, done disentitling him to restitution of conjugal rights, since the withdrawal by him of his former suit for judicial separation on March 28, 1962, but for which Aloka was willing to return to her husband, as she says in her evidence? That is not, in our judgment, the right way to look at the matter, nothing to say of the fact that such a contention attributes to Aloka only part of what she says in her evidence. No doubt she says:
'I was willing to go to my husband's house before the suit.' This is, however, not all she says. She says too:
'But how can I go thereafter the suit and after all the allegations he had made against me?
And what type of allegation: The vilest that a husband can make against his wife, as noticed, while reviewing the contents of Bejoy's letters bearing dates, February 3, 1958, (paragraph 5), June 3, 1958, (Paragraph 11), and with the postal seal dated July 16, 1958, (paragraph 12). More, such allegations are false, and false to the knowledge of Bejoy who makes no attempt, as indeed he cannot, to substantiate them, but admits on the other hand that he had abused her so out of anger, though, upon evidence, we find no cause for such shocking outburst. The only fault of Aloka appears to be that her brothers did not pay her the dowry which Bejoy considers to be his own and so just a claim at that on his part (paragraph 11). After such horrible baseless allegations, it is idle to say that Aloka has no reasonable excuse to withdraw herself from the society of her husband, 'within the meaning of Section 9, Sub-section (1), of the Hindu Marriage Act, 25 of 1955. We cannot conceive of anything more reasonable, showing as it does mental cruelty of the basest type inflicted upon Aloka by Bejoy.
24. It is then contended on the authority of the majority decision in Lachman Utamchand Kirpalini v. Meena Alias Mota, AIR 1904 SC 40, that these letters of February 3, June 3, and July 16, 1958, in extremely bad taste though they are, had no impact on Aloka, as Lachman Kirpalini's letter dated April 1, 1955, attributing to his wife Meena 'outrageous conduct'', 'reckless life', 'wild ventures', 'desertion', and 'choosing the path of pleasure and perversion'' had no effect on her mind. But Aloka and Meena bear no comparison. Even after the letter of April 1, 1955, Meena wrote to Lachman Kirpalini on April 12 following, addressing him as 'my dearest husband', characterising the accusations hurled against her as 'merely the product of his hallucination', and promising to return to him and his dear son Ashok, so soon as her health was 'completely improved'. Say this of Aloka? She would have gone back to her husband but for the previous suit and the allegations he made against her. And the allegations are as dirty as unfounded. Meena attached no importance to her husband's outpourings, as held by their Lordships, Subba Rao C. J. (then Subba Rao J.) dissenting. Aloka attaches the greatest importance to such mean allegations which need not be repeated. And who would not, placed in her predicament? Naturally, she could not rely on such a one, as she says, when he changed his tactics from August 1960 and commenced writing conciliatory letters, not with a genuine change of heart, but with a view to laying the foundation of a future litigation. Apart from the consideration that a case cannot be an authority on a point of fact: Neta Ram v. Jewanlal, : AIR1963SC499 , what has been said of Meena in the context of facts there cannot be said of Aloka in the context of facts here. A husband cannot inflict the worst type of mental cruelty upon his wife by calling her a prostitute, a whore, a fallen woman, from whom, he goes on repeating, he wants an immediate divorce, by questioning in a most shameful and shameless manner the paternity of his own child, by threatening to give away the child to somebody else, by demanding back all the ornaments and presents given her including iron bangles which a Hindu woman with her husband living cannot go without, for his new wife to come, etc. etc., and yet seek restitution of conjugal rights.
25. On this consideration alone, St must be held that Bejoy's matrimonial cause for restitution of conjugal rights has been rightly dismissed by the trial judge. In the circumstances, it has become unnecessary to deal with the other plea of Aloka, one of desertion, in answer to the relief by way of restitution of conjugal rights Bejoy prays the Court for.
26. There is another consideration yet. The Court may decree restitution of conjugal rights, not that the Court must, as is the mandate of Section 9, Sub-section (1), of the Hindu Marriage Act, provided that Bejoy can successfully claim as follows.
1. Aloka has, without reasonable cause, withdrawn from his society.
2. The Court is satisfied about the truth of the implement made in the petition for restitution of conjugal rights.
3. There is no legal ground why such petition should not be granted.
This is independent of the pleas available to Aloka under Section 9, Sub-section (2), as emphasized by P. N. Mookerjee J., sitting with D. Basu J., in Sm. Rebarani Sen Gupta v. Ashit Sen Gupta, AIR 1935 Cal 162, 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 mode an attempt to bring back his wife to the matrimonial home.
27. Now, judged by this test, the three requirements of Section 9, Sub-section (1), how does Bejoy's prayer for restitution of conjugal rights stand, no matter what the plea of Aloka is? Upon the whole of the evidence reviewed above, and, in particular, in view of the calumny against Aloka given vent to by Bejoy in one letter after another calling upon her to have a divorce forthwith, and mentally torturing her with the mention of a wife to come, it is impossible to say that Aloka has, without reasonable excuse, withdrawn from his society. So the first requirement of Section 9, Sub-section (1), fails Be joy.
28. So does the second requirement. It is false, and false to the knowledge of Bejoy, to say, as he does in the fourth paragraph of his petition, that Aloka left the matrimonial home towards the first week of May 1958, the truth being that he himself reached her to her mother's place for confinement. That is not leaving the matrimonial home with the intention of deserting Bejoy. Worse, we see suppression of truth in his petition in that he utters not a word there about the astounding allegations --and false allegations -- he makes against his wife and his people in the letters we have reviewed. The Court is not satisfied about the truth of his statements in the petition. The Court is satisfied the other way about -- about their falsity.
29. The third requirement of a legal impediment does not, therefore, fall to be considered.
30. So viewed as well, Bejoy cannot succeed. First and last, the Court cannot bring itself, in the exercise of its discretion, to grant the discretionary relief by restitution of conjugal rights Bejoy prays the Court for.
31. In the result, the appeal fails and is dismissed with costs, save and except the amounts paid already as litigation costs. We assess the hearing fee as ten gold mohurs.
32. Liberty is given to the wife respondent to apply for permanent alimony and maintenance for herself as well as the child.
S.K. Datta, J.
33. I agree.