Amini vs Kuttappan

Shamsuddin, J.—This M.F.A. is preferred against the order of the Principal Subordinate Judge, Parur in O.P. (HMA) 30/81 which was a petition filed by the Respondent herein u/s 9 of the Hindu Marriage Act for restitution of conjugal rights.

The Appellant and the Respondent are Hindus belonging to Paraya (Harijan) community. The Respondent married the Appellant on 7th September 1975 according to the custom and usage in the community at Advaidasramam, Alwaye. After the marriage they lived together in the Respondent''s house as husband and wife. While so, in September 1977 the Appellant went to her parent''s house for delivery and the Appellant delivered a still born child on 26th November 1979. According to the Respondent on 29th day of delivery the Respondent along with his parents went to the Appellant''s house for taking her back, but she did not go with the Respondent and thereafter also many attempts were made by him to take the wife to his house, but she was refusing to go and stay with him. Thereupon he sent two registered letters dated 1st April 1980 and 8th April 1980 calling upon the father of the Appellant to send the Appellant to him. Finding that it did not yield any result the Respondent again caused to send a lawyer''s notice, dated 8th June 1981 calling upon her to go and reside with him within 15 days. Though notice was received by the Appellant on 5th June 1981 she did not accede to the demand made by the Respondent. On the basis of those facts the Respondent alleged that the Appellant was denying conjugal rights to him and therefore he was suffering physically and mentally. According to him it was in the above circumstances, the above application was filed seeking for a decree for restitution of conjugal rights.

The application was resisted by the Appellant. According to her there was no bona fides for filing the petition and the only purpose for which application was filed was to avoid maintenance being awarded to her on the application filed by her before the Judicial 1st Class Magistrate''s Court, Perumbavoor for maintenance. She further stated that a still born baby was born on 26th November 1979 and after that for a pretty long period, she was suffering physically and mentally and so on the 28th day she did not go to the Respondents house. She was ready and willing to go to the Petitioner''s house and live there after regaining physical and mental health, but the Appellant was not prepared to take her. The Respondent was also making threats and casting aspersion on her character. Many letters were written by the Respondent demanding divorce. In un-equivocal terms, he expressed himself that he did not want to continue the marital relationship. He also called her a prostitute and therefore the Respondent was guilty of cruelty. It was also alleged that he used to manhandle the Appellant while they were living together. She also alleged that the Respondent had married another lady and he was not looking after her, after she went to her parent''s house for delivery. The allegation that the Respondent made attempts to take the Appellant to his house was also denied by her. She also alleged that the Appellant had taken gold ornaments and that she apprehended danger to her life in case she went and lived with him.

To substantiate their case, the Respondent examined himself as P.W. 1 and marked Exts. A-1 to A-4(a) and the Appellant examined herself as R.W. 1 and marked Exts. B-1, B-1 (a) and B-1 (b). After elaborate consideration of the documentary and oral evidence in the case, the lower Court found that the application was not filed as a counter-blast to the proceedings for maintenance initiated by the Appellant and that it could not also be held that the application was instituted without bona fides. The lower court also found that the wife had withdrawn from the Society of the Respondent and therefore he was entitled to get a decree for restitution of conjugal rights, and accordingly a decree for restitution was passed and the Appellant was directed to go and live with her husband.

In this appeal, the learned Counsel for the Appellant strenuously contended that the finding arrived at by the lower court and the decree passed by the lower court for restitution of conjugal rights are unsustainable in law. The learned Counsel for the Appellant took us through the oral testimony of P.W. 1 and heavily relied on Exts. B-1, B-1 (a) and B-1 (6) which are admittedly letters sent by the Respondent herein to the Appellant. He also argued that Exts. B-1 (a) and B-1 (b) letters would clearly demonstrate that the application for restitution filed by the Respondent herein was not bona fide and it was only to avoid the maintenance allowance being ordered against him in an application filed by her before the court of Judicial Magistrate of 1st Class, u/s 125 of the Code of Criminal Procedure.

It is no doubt true that the Respondent has characterised the Appellant as a prostitute and has also threatened that he would marry another lady on 20th March 1981. In Ext. B-1 (a) which is, dated 16th March 1981 he stated that the Appellant''s brothers were helped by him and even on the previous day of marriage the Appellant''s father and uncle had come to take a loan of Rs. 2,000 from him and that the ornaments presented by him including Thali weighing 3.5 sovereigns disappeared after the marriage. He also stated in Ext. B-1 that he wanted to admit her for delivery in a particular hospital which would have enabled him to claim reimbursement but she went to the hospital of one Mathai and expressed doubt whether it was not for abortion, she got her admitted in the hospital of her choice. In Ext. B-1(b), dated 23rd March 1987 he stated that he had gone there several times like a dog to see her and to continue the marital relationship and requested her to come and stay with him and also sent several letters demanding her to come and stay with him, but she declined to accede to his request. He also reminded her that in the hospital he remained by her side, without eating or sleeping in order to save her life. The learned Counsel for the Respondent pointed out that it was at a time when he was completely frustrated on account of her persistent refusal to go and stay with him, despite repeated requests made by him that Exts. B-1, B-1 (a) and B-1(b) were written. Before writing these letters he sent two registered letters A-1 and A-2 dated 1st April 1980 and 18th April 1980 respectively requesting her father to send the Appellant to him. Thereafter also he continued his efforts to bring her back. According to the counsel having failed in all this, the Respondent would have been thoroughly upset. The learned Counsel for Respondent also pointed out that Ext. B-1 series were written during the interval of a period of two weeks. In Ext. A-1 addressed to the Appellant''s father, he requested him to send his wife to his house within a period of 7 days. Ext. A-2 also was addressed to him and in this also the Respondent complained because of the conduct of her father, he could not take his wife and he had gone to his house on 31st March 1980 and 1st April 1980 and then also he could not take his wife and thereupon he sent a letter on 1st April 1980. No reply was sent to these letters and his fervent request to send the Appellant to him was unheeded. In this connection it has also to be noticed that though maintenance was awarded to the Appellant by the Magistrate it was set aside by the court of Sessions. A further revision was filed before this Court. The decision rendered by this Court in the revision has been reported in Amini v. Kuttappan 1987 (2) KLT 914. It was contended before this Court that the words used by the husband in these letters would constitute cruelty entitling her to claim separate maintenance. This Court took the view that allegations made in Exts. B-1, B-1(a) and B-1(b) could not be considered as constituting cruelty in the peculiar circumstances of the case and she was not entitled to claim separate maintenance.

The learned Counsel for the Appellant brought to our notice a few decisions and on the basis of observations contained in these judgments argued that aspersions cast on the Appellant in Ext. B-1 series will constitute cruelty in law. In Sumanbai Vs. Anandrao Onkar Panpatil, it was held:

There can be no more insulting injury to the wife than her own husband doubting her chastity. It must be held that if such allegations are lightly made and persisted in filing the petition, the husband is not entitled to any relief u/s 9 of the Act.

In A. Vs. B., the Gujarat High Court said:

To allege that the wife was unchaste by itself would amount to gravest of mental cruelty which would entitle the wife to get the marriage dissolved. Merely because the husband after maiking wild and reckless allegations in his written statement regarding the chastity of the wife, tried to resile from the same by deposing on oath that he did not suspect the fidelity of his wife cannot exonerate the husband, from the charge of mental cruelty.

The same view was expressed in Iqbal Kaur, wife of Iqbal Kaur Vs. Pritam Singh S. Nanak Singh, . The Court said:

When the wife is stated by the husband to be living the life of a prostitute and in the environments of immorality without any proof of these allegations, she can legitimately ask the Court to give a finding that she has a reasonable apprehension in her mind about the harmful or injurious effect of living in the matrimonial home. In such a case, the wife is treated with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious for her to live with the other party, and this u/s 10(r)(b) is sufficient to justify a decree for judicial separation.

There cannot be any doubt that the allegations of unchastity against the wife without any foundation is a serious matter and may constitute cruelty in the normal circumstances, but it is not possible to lay down that in all cases such allegations will constitute cruelty, without adverting to the circumstances, the back ground and the psychological and emotional strain under which the allegation was made. In this context, it will be appropriate to bear in mind the following observations made by the Supreme Court in Shobha Rani Vs. Madhukar Reddi, .

It will be necessary to bear in mind that there has been marked change in the life around us. In matrimonial duties and responsibilities in particular, we find a sea of change. They are of varying degrees from house to house or person to person. Therefore, when a spouse makes complaint about the treatment of cruelty by the partner in life or relations, the Court should not search for standard in life. A set of facts stigmatised as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance. We, the Judges and lawyers, therefore, should not import our own notions of life. We may not go in parallel with them. There may be a generation gap between us and the parties. It would be better, if we keep aside our customs and manners. It would be also better if we less depend upon precedents. Because as Lord Denning said in Sheldon v. Sheldon (1966) 2 All ER 257 (259) ''the categories of cruelty are not closed''. Each case may be different. We deal with the conduct of human beings who are not generally similar. Among the human beings, there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop up in any case depending upon the human behaviour, capacity or incapability to tolerate the conduct complained of. Such is the wonderful realm of cruelty.

The Lower Court had occasion to watch the demeanour of the Appellant and Respondent. It took the view that the allegations in Ext. B-1 series cannot be taken as constituting mental cruelty which could be taken as a ground or a reasonable excuse for the withdrawal from the society of the husband in the instant case. He was complaining about the wife''s refusal to go and live with him in these letters. Along with that, he made imputation of unchastity against the wife. His explanation was sought and he stated that those allegations were made to persuade her to go and stay with him. A consideration of the entire contents of Ext. B-1 series in the background of the circumstances which led to the separation of the wife and husband certainly would suggest that the explanation offered by the Appellant in the box about Ext. B-1 series is not altogether unacceptable. It was also his explanation that he believed that his child died as a result of the neglect of his wife in not getting herself admitted in the hospital which he suggested and his statement that he was going to get married another lady was intended to generate envy in the mind of the wife and change her marital attitude so as to induce her to resume marital relation. In this context, the Lower Court made mention of the fact that when the Appellant was admitted in the hospital for first delivery, he sat by her side and nursed her for four days, and that the Appellant had no complaint that the Respondent was not a loving husband. It was difficult to justify the action of the husband in making such wild allegations against his wife by any standard, but before treating such allegations as constituting legal cruelty, we have to take into account the persistent and recalcitrant conduct of the Appellant in not going into the matrimonial house and staying with him despite the repeated requests made by the Respondent to the father of the Appellant to send her and also to her to go and stay with him. The Respondent must have been thoroughly upset by the conduct of the Appellant in not going to him and of her father in not sending her to him. We find that even in the proceedings u/s 125 Code of Criminal Procedure, the Appellant stated that she did not want to go and stay with him, despite the offer made by Respondent subsequent to Ext. B-1 series. Our conclusion from the circumstances emerging from the evidence in this case is that the allegations and threat of remarriage are not seriously made. There is no evidence to show that Respondent actually married another girl on 14th March 1981 as stated in this letter. In the circumstances, we are unable to hold that the view taken by the Lower Court that there is no reasonable excuse for the Appellant to withdraw from the society of the Respondent is unreasonable or unsustainable. We are also unable to accept the contention raised by the learned Counsel for the Appellant that the application for restitution of conjugal rights filed is a counterblast to the application filed by the Appellant for maintenance. As a matter of fact, we enquired with the counsel for the Appellant, whether the Appellant was willing to go and stay with the Respondent even at this stage, but his reply was that the Appellant did not want to live with the Respondent. There is no justifiable ground for the Appellant to stay away from the Respondent. We therefore hold that the decree for restitution of conjugal rights passed by the lower court does not call for any interference. We accordingly dismiss the appeal.

Whatever justifications there were for the frustrated husband to cajole or coerce his wife to return to the matrimonial home, none of them is sufficient to condone the intemperate expressions which he chose to employ as a device to achieve that goal. That lack of restraint in his expressions calls for reproach. We express our disapprobation by awarding costs as heavy as we can award. We, therefore, direct the Respondent to pay costs of the Appellant including Advocate fee in this Court and in the lower court. We fix Rs. 1,500 as Advocate''s fee in this Court.

In the result, the M.F.A. fails and it is accordingly dismissed.