Gurcharan Singh vs Smt. Waryam Kaur

I.D. Dua, J.—This appeal is directed against the order of a Subordinate Judge, 1st Class, Malerkotla dismissing the application of Gurcharan Singh Appellant for restitution of conjugal nigh is u/s 9 of the Hindu Marriage Act against I his wife Smt. Waryam Kaur.

In June 1954 the parties gut married, and it is admitted before me that a son was burn out of this wedlock who is now about 21/2 years old. It is also admitted that on 16-7-1957 the lady applied for maintenance allowance against lien husband u/s 488, Code of Criminal Procedure It appears that an undated notice was sent by the husband through his counsel Shri Khem Chand to Smt. Waryarn Kaur asking her to come and live with him. From the post-office cal, however, the trial Court has observed that perhaps it was sent on 17-7-1957, which is one day after the institution of the application u/s 488, Code of Criminal Procedure.

The present petition was filed on 9-10-1957. In this petition it is asserted that Smt. Waryam Kaur without reasonable cause withdrawn from the Petitioner''s society about three years earlier, but the cause of action finally accrued about nine months "before the institution of the petition when she finally refused to come in spite of his requests and efforts to get her back in house.

This petition has been resisted'' by the lady on grounds inter alia that she was ill-treated by her husband and his relatives and because of this cruelty, her lather had brought her to"his own house with the help of respectable persons, she has further pleaded that the Petitioner had falsely accused her of adultery and that 110 steps had been taken by her husband to bring her to his house, except one application before the Nagar Panchayat Sarod, which, ''according to her, was not bona fide. The present petition has been alleged to have been filed as a counterblast to the maintenance proceedings initiated by her. On these grounds, the lady has claimed that the application for restitution of conjugal rights deserves to be dismissed.

Three issues were frame, the first one dealing with the maintainability of the petition the second one with the maltreatment of the lady, and the accusation of adultery against her; and the third one deals with the relief to be granted. The petition was held to be maintainable after amendment by which the application was made to conform with the rules framed under the Hindu Marriage Act. Under issue No. 2 the Court discussed all the points which arise for consideration and came to the following conclusions:

That the Petitioner has been guilty of inordinate delay and negligence in bringing the present action for restitution of conjugal rights;

that the husband has been guilty of desertion and the wile had been made to leave her marital home. Tin''s desertion has continued from the time when the lady had been taken away from the husband''s house with the help of some members'' of the Panchayat;

that the present petition is not bona fide and that the husband had never cared to look after his wife and that he did not care even to enquire about the birth of his son; ho only filed tho present petition alter the lady had taken proceedings for relief u/s 488, Code of Criminal Procedure and.

that the husband actually doubted the parentage of the child born to Smt. Waryam Kaur, which in effect amounted to attribution of immorality to the wife.

On all these grounds the learned Subordinate Judge felt that the Petitioner husband could not succeed.

An appeal was preferred to this Court by the husband on 24-10-1.958 and was admitted by a Division Bench on the 7th of November. On the 31st of December 1958 an application was filed in this Court (Civil Miscellaneous No. GO of 1959 in F.A.O. No. J 85 of 1958) by Smt. Waryam Kaur u/s 524 of the Hindu Marriage Act stating that an order awarding a sum of Rs. 15/- per month by way of maintenance had been passed u/s 488, Code of Criminal Procedure, in her favour against Gurcharan Singh, but she had not till then been paid a single penny with the result that she was in great financial difficulties; it was further stated that the trial Court u/s 24 of the Hindu Marriage Act had also awarded to her a sum of Rs. 45/- as expenses of the proceedings. She claimed in this Court a sum of Rs. 350/- by way of expenses for the proceedings and a sum of Rs. 50/- per month as maintenance pendente lite from the date of the filing of the appeal up to the date of final decision.

Notice of this application to the Appellant was ordered by Mehar Singh J. on 13-1-1959, and on 27-1-1959 in the presence of the counsel for both the parties Harbans Singh J. ordered that the amount of maintenance fixed u/s 488, Code of Criminal Procedure, beginning from 25-7-1958 up to 25-1-1959 should be paid within three weeks and thereafter, for the month beginning 25-1-1959 till 25-2-1959 should be paid on or before 10-3-1959 and for the next month on, 10-4-1959 and so on till the decision of the present appeal.

The Appellant was further directed to pay a sum of Rs. 120/- to the wile towards expenses of Proceedings in the present appeal, on or before 1.3.1959. It appears that no appeal was preferred against tins order of the learned Single judge with the result that it must be deemed to have become final, and binding on the parties.

This order having not been complied with, on 26-3-1959 another application was filed on behalf of Smt. Waryam Kaur u/s 151, CPC (Civil Miscellaneous No. 700 of 1959 in F.A.C. No. 185 of 1958), stating all the facts and praying that the amount ordered to be paid on 27-1-1959 should be got paid within a time to be fixed by this Court, failing which this appeal may be .dismissed with costs. On this application notice was directed to be issued on the 23rd of April 1959 by Harbans Singh J., but on 4-5-1959 Grover J. in the presence of counsel for the parties passed the following order:

Let the Court below execute the order of Harbans Singh J. passed on 27-1-1959.

Mr. Sarin on behalf, of Smt. Waryam Kaur raised a preliminary objection before me that in view of the non-compliance with the order of this Court, dated 27-1-1959, the Appellant should be considered to be in contempt and therefore this appeal should not be heard on the merits, but should be stayed till the order is obeyed and complied with by the Appellant.'' He has in this connection drawn my attention to Yaqub Masih Vs. Christina Masih and Another, where Allsop J. directed the case before: him to stand adjourned till the costs ordered to be paid by the husband were actually paid.

In the reported ease the husband had charged the wife with adultery and the Court observed that if the husband sought relief, it was just that he should enable his wife to defend herself when she bad no means to support her own case. The husband alleged that he had absolutely no means and that he could not deposit the money. It was in these circumstances that the learned Judge ordered that the petition should not be allowed to proceed and should be adjourned till the costs were paid.. In support of this order reliance was placed on the practice of the Ecclesiastical Court as disclosed in Keano v. Keane (1873) 3 P and D 52. The counsel has also referred me to A.A. Garlinge Vs. Irene Rebecca Garlinge and Joseph Prior,

Sections 24 and 28 of the Hindu Marriage Act have also been referred to in support of the contention that this Court can both pass orders u/s 24 and enforce them u/s 28 of the Act. The counsel has also stated at the Bar that though execution proceedings are going on as directed by Grover J., the Appellant seems to have absconded with the result that the payment orders cannot be satisfied. This assertion is, however, not denied or controverted (by Mr. Alma Ram who has merely expressed his ignorance.

As against this Mr. Alma Ram has submitted that the present prayer, which was also contained in the application dated 20-3-1959, should be deemed to have been refused by Grover J. on 4-5-1959, when the Court below was merely directed 4 to execute the order of this Court dated 27-1-1959. "The counsel has also submitted that there is no question of the Appellant being in contempt and therefore there is no justification for an order adjourning this case till the order dated 27-1-1959 is complied with.

(6A) In England although orders for payment of costs and alimony can no longer be enforced by attachment since the enactment of the Debtors Act, 1869, non-compliance with such orders is still a contempt of Court, and the Court may legitimately refuse to permit the party in contempt to take a further part in the litigation. (See Halsbury''s Laws of England, Third Edition, Volume 8, para 41, page 22). I am, however, inclined as at present advised to agree with Mr. Atma Ram that prima facie, in view of the order of Grover J., passed in the presence of the parties on 4-5-1959, it may not be proper to accede to the preliminary objection.

Coming to the merits of the case, Mr. Atma Ram has contended that die only objection raised in the written statement of the lady related to cruelty and reasonable apprehension in her mind that it would be harmful or injurious for her to live with the husband and that, therefore, the Court below was not justified in taking into consideration other factors for refusing the husband''s prayer. From the written statement filed by the lady, I find that inordinate delay and negligence in filing die present petition as also the false accusation of adultery were in addition pleaded therein. Cruelty and physical beating by the husband and his relations was of course pleaded. But this apart, it is clear that u/s 23 of the Hindu Marriage Act the law lays down the circumstances in which alone the Court can decree the relief claimed. This section, so far as relevant for our purpose, is in the following terms:

23(1) In any proceeding under this Act whether defended or not, if the Court is satisfied that-

(a) any of the grounds for granting relief exists and the Petitioner is not in any way taking advantage of his or her own wrong or- disability for the purpose of such relief, and

(b) where die ground of the petition is the ground specified in Clause (f) of Sub-section (1) of Section 10, or in Clause (i) of Sub-section (1) of Section 13, the Petitioner has not in any manner been accessory to or'' connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the Petitioner has not in any manner condoned the cruelty, and

(c) the petition is not presented or prosecuted in collusion with the Respondent, and

(d) there has not been any unnecessary or improper delay in instituting the proceeding, and

(e) there is no other legal ground why relief should not be granted

then, and in such a case, but not otherwise, the Court shall decree such relief accordingly.

X X X X X

It was therefore within the competence of the Court below to take into consideration, all the circumstances which it did, in passing the final order. The counsel then took me through the evidence led on behalf of the lady and submitted that the findings if the Court below are not justified on the present evidence. He also referred to the evidence led by the husband to show that he had tried to bring the wife back to his own house, but she, for reasons best known to her, did not agree to come. The counsel has submitted that there is no particular instance of beating the lady proved on the present record; it is also emphasized that Smt. Waryam Kaur herself does not say that she ever reported or complained to her father or her brother about any particular instance of beating.

In this connection Mr. Sarin has drawn my attention to the evidence of the lady that she was beaten even when her brother went to see her. Mr. Atma Ram, however, submits that on this point her brother''s testimony differs from that of the lady, and indeed their versions, so says the counsel, are contradictory as to what precisely had happened on this occasion. Mr. Atma Ram has also tried to make capital of the fact that no medical evidence with respect to the injuries on the wife''s person has been produced on the present record.

In this connection reference has been made by the counsel to cases like Mrs. Kalian v. Mr. Kalian AIR 1933 Lah 728, Heather Ussher v. Thomas Ussher AIR 1941 Rang 221, Mrs. f. julius v. Mr. A. Julius AIR 1932 Oudh 231, as authorities for the proposition that isolated acts of violence or assault do not amount to cruelty within the provisions of Section 10(1)(b) of the Hindu Marriage Act.

So far as the allegation of the charge of adultery is concerned, the counsel has vehemently submitted that unless the imputation is made to third parties, it would not be of much help to Smt. Waryam Kaur; he has also submitted that if the husband had not failed, to support the lady and the child in a decent way, he was entitled to the relief claimed by him. Mrs. A.K. Niblett v. Mr. R.H. Niblett AIR 1935 Oudh 133, has been relied upon for the first submission and AIR 1928 114 (Oudh) for the second.

On facts he has submitted that there was really no undue delay on the part of the Petitioner and that as soon as he realised that the lady had finally refused to come back to his house he filed the present petition. It has further been argued that when he gave the notice, he could not be aware of the filing of the application u/s 488, Code of Criminal Procedure, by the lady. Mr. Sarin in reply has controverted this argument and has submitted that after the birth of the son it is neither party''s case that the wife lived in her marital home. The counsel contends that ever since then the husband has been completely neglecting and refusing, to maintain her. He has in this connection placed reliance on Mst. Gurdev Kaur v. Sarwan Singh (1959) 61 Pun LII 188 : (AIR 1959 Punj 162) where considering the scope of Section 9 of the Hindu Marriage Act, it has been laid down as follows:

Although Sub-section (2) of Section 9 of the Hindu Marriage Act confines pleas in defence only to those grounds which can be taken under sections 10, 12 and 13 of the Act, Sub-section (I) itself lays down certain conditions which must lie fulfilled before a decree can be granted. It will have to be seen firstly whether the husband or wife, as the cast; may be has withdrawn from the society of the other without reasonable cause. The second requirement is that the Court must be satisfied of the truth of the. statements in such a petition. Thirdly, there; should be no legal ground why the relief should not be granted.

The Court would refuse to order restitution, where it has become a practical impossibility for the parties to live together. The Court should not only refuse a decree to a Petitioner who has been guilty of a matrimonial offence but also if his conduct was responsible for the Respondent withdrawing from his society. Further the; conduct falling short of cruelty may also disentitle the Petitioner to any relief.

Relying on this judgment, the counsel contends, that it is the husband who is guilty of various matrimonial offences and therefore is not entitled to the relief by way of restitution of conjugal rights. Mr. Sarin has also- submitted that the judgment of the Court below is fully justified on the evidence led in the case.

After giving my most anxious thought to the evidence on the record and the arguments of the counsel, in my view thi appeal cannot succeed. it is fully established on the record that, ever since tlie svas taken away by her lather, when she was in the family way, the husband has not cared either to send maintenance to her or even to take interest in hi wife or oven in tlie child; he did not keep in touch even with the birth of the child.

The evidence led on hi behalf with respect to the Panchayat does not, in the background of the attending circumstances show that he was genuinely and in a bona fide way desirous of bringing back his wife to her marital home and of treating her in a manner in which she is entitled, as a wife, to be treated in her house. I have deli berately used the expression �her house� because her husband�s house must also be considered in this context to be her house.

The language in which Exhibits D.A. and D.C. are couched, and on which reliance has been placed by the Courts below for the observation that he had suggestively attributed immorality or - infidelity on the part of his wife, by using language, which suggested doubt in his mind about the paternity of the child, in my view, fully justify, the opinion expressed in th impugned judgment. Nothing substantial has been shown by the counsel for the Appellant to enable me to hold that the observation is so clearly erroneous as to justify its reversal by this Court on appeal.

The oral evidence, through which I have been taken, also amply justifies the finding of the Court below. In the case of conflict of oral evidence of the parties, unless there is some special feature about the evidence of a particular witness which has escaped the trial Court''s notice, or unless there is a reasonably sufficient balance of improbability to displace the opinion of the trial Judge, the appellate Court is usually slow to interfere with the findings of the court of first instance on questions of fact. No nicely-balanced calculations can ordinarily justify reversal of the decision of the Court on facts. In the present case no such special feature has been shown by the learned Counsel.

In this connection, it is not without significance that the trial Court was invested both with the powers of a criminal Court as well as a civil Court and, as such, it was trying both the present suit and the proceedings u/s 488. Code of Criminal Procedure, in which also it actually passed an order for maintenance.

Before concluding I may observe that) whether or not isolated acts of violence amount to cruelty normally depends on the facts and circumstances of each case and the modern tendency of the society is at least to treat with disapproval acts of violence or assault towards women. New rules of social behaviour and conduct must, therefore, be recognised by the Courts in determining what would amount to cruelty in the present set up, and I would be disinclined to dismiss lightly the so-called isolated acts of violence and assault as not amounting to cruelty, if the victims of such assaults resent, and take exception to them.

For the reasons given above'' this appeal fails and is hereby dismissed with costs.