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Mohinder Singh Vs. Smt. Preet Kaur - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtJammu and Kashmir High Court
Decided On
Case NumberCivil Misc. First Appeal No. 54 of 1976
Judge
Reported inAIR1981J& K25
ActsJammu and Kashmir Hindu Marriage Act, 1980 - Section 9; ;Jammu and Kashmir Hindu Marriage Act, 1955 - Section 9
AppellantMohinder Singh
RespondentSmt. Preet Kaur
Respondent Advocate H.S. Oberai, Adv.
DispositionAppeal dismissed
Cases ReferredJagdish Lal v. Smt. Shyama Madan
Excerpt:
- .....the lower court dismissed the application holding that, in the circumstances, the wife had a 'reasonable excuse' for withdrawing from the society of her husband. the husband appealed. the appeal came up before one of us, namely, mufti j. as he then was. before him the argument on behalf of the appellant-husband was that the expression 'reasonable excuse' appearing in sub-section (1) of section 9 of 1955 act was restricted to the grounds which under sub-section (2) could be a ground either for judicial separation, or for divorce, or for declaring the marriage to be null and void. for this, reliance was placed on a decision of the andhra pradesh high court in peddigari annapurnamma v. pedigari appa rao (air 1963 andh pra 312). on the other hand, it was contended on behalf of the.....
Judgment:

1. The parties are husband and wife. They were married sortie time in the year 1974. Hardly six months after the marriage, the husband met with violence from his brother with the result that he lost his eyesight and became totally blind. The wife went back to her parental house and never returned. The husband sued her for restitution of conjugal rights under Section 9 of the Jammu and Kashmir Hindu Marriage Act, 1955, (hereinafter called '1955 Act'). The lower court dismissed the application holding that, in the circumstances, the wife had a 'reasonable excuse' for withdrawing from the society of her husband. The husband appealed. The appeal came up before one of us, namely, Mufti J. as he then was. Before him the argument on behalf of the appellant-husband was that the expression 'reasonable excuse' appearing in Sub-section (1) of Section 9 of 1955 Act was restricted to the grounds which under Sub-section (2) could be a ground either for judicial separation, or for divorce, or for declaring the marriage to be null and void. For this, reliance was placed on a decision of the Andhra Pradesh High Court in Peddigari Annapurnamma v. Pedigari Appa Rao (AIR 1963 Andh Pra 312). On the other hand, it was contended on behalf of the respondent wife that the scope of the expression 'reasonable excuse' was not restricted to the grounds which under Sub-section (2) could be a ground either for judicial separation, or for divorce or for declaring the marriage to be null and void. It was much wider and would include any ground which in the opinion of the court was reasonable. For this, reliance was placed on a decision of the Allahabad High Court in Jagdish Lal v. Smt. Shyama Madan, (AIR 1966 All 150) which was followed by the Punjab High Court in Sadhu Singh Balwant Singh v, Smt. Jagdish Kaur Sadhu Singh (AIR 1969 Punj 139). Being of the opinion that there was no decision of the Supreme Court nor of this court, bearing on the scope of Section 9 (1) of 1955 Act, Mufti J. directed that the case be placed for decision before a larger Bench. That is how this case has come up before us.

2. During the pendency of this reference the Jammu and Kashmir Hindu Marriage Act, 1955, was repealed and in its place a new act called the Jammu and Kashmir Hindu Marriage Act, 1980 (hereinafter called '1980 Act') was enacted by the State Legislature. Section 36 of 1980 Act. in so far as relevant, provides as under :--

'36. Repeal and Saving.

(1) The Jammu and Kashmir Hindu Marriage Act, 1955 (VIII of 1955) is hereby repealed.

(2) Notwithstanding such repeal nothing in this Act shall affect--

(a) the validity, effect, or consequence of anything done or suffered to be done under the said Act before the date on which the provisions of this Act come into force.

(b) any obligation or liability already incurred before the commencement of this Act.

(c) any legal proceedings or remedy in respect of any privilege, obligation, liability, and such legal proceeding or remedy may be instituted, continued or enforced under this Act.'

3. The effect of provisions of Clause (c) is that the present appeal would be governed by the provisions of 1980 Act. Section 9 of the said Act provides :

'Restitution of conjugal right.

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.

Explanation.-- Where a question arises whether there has been reasonable excuse for withdrawal from the society the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.'

4. This section is almost verbatim reproduction of Sub-section (1) of Section 9 of 1955 Act with an explanation added to it. The significant departure is that subsection (2) of Section 9 of 1955 Act has been omitted. The effect of this omission is that the distinction sought to be brought about by the learned counsel for the husband has disappeared. It no longer holds good. The application for restitution of conjugal rights can be resisted on any ground which is reasonable irrespective of the fact whether such ground can be a ground for judicial separation or for divorce, or for declaring the marriage to be null and void. The question arises whether the total blindness of the husband can be treated as a reasonable ground for the wife to resist his application for restitution of conjugal rights. In the present case, dealing with this aspect, the trial Court has observed :

'The decree for restitution of conjugal rights has always to be passed with abundant caution. Tt is not an ordinary matter to compel an unwilling wife to live with a husband with whom she cannot live a happy life. The conjugal relations are meant for happiness and not for disaster and misery, no situation can afford happiness, when she is forced to live as a wife of a blind unprotected man. The refusal of the wife here is not due to obstination nor is her conduct improper, unjust, or unreasonable. She is not devoid of compassion, but she is asked to pay too high a price for this compassion. The husband too is expected to have sympathy for her. The sympathy of the wife cannot restore eyes to the husband but the sympathy of the husband can restore the charm of life to the wife in the present case. They have had a very short span of marital life and such a short period cannot grow deep roots of attachment. These are facts which indicate that compulsion cannot yield a happy marital life between the couple and in these circumstances the discretion of the court cannot be exercised in favour of a decree for restitution of conjugal rights.'

5. We generally agree with these observations. We might add that the object of marriage is not simply to satisfy the sexual urge of a couple or to fulfil their desire to procreate children. It has much wider significance. It is intended to bring about a union of hearts so that the couple may live in happiness and enjoy all the good things of this world in one another's company, particularly so, where the couple are still young and have not seen much of this world. It is difficult to see that this object can be served by a wed-lock between a young couple where the husband is totally blind, happiness apart, the husband, even with the help of various schemes for the welfare of the blind, may not be able to earn a decent living tor himself and his wife and children. In the circumstances we agree with the trial Court that the wife was justified in withdrawing from the society of her husband and there is reasonable excuse for her to refuse to live with him. In this view the decree of the court below refusing restitution must be affirmed.

6. The result is that this appeal fails and is dismissed, but without any order as to costs.


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