Shrimati Santosh Kaur vs Mehar Singh

P.C. Pandit, J.—This is an appeal filed by Smt. Santosh Kaur against the order passed by the learned District Judge, Gurdaspur, granting a decree for restitution of conjugal rights in favour of her husband, Mehar Singh, respondent, u/s 9 of the Hindu Marriage Act, 1955.

According to the allegations of the husband, the marriage between the parties was solemnised on 1st September, 1962. At that time his age was about 23 years, while that of his wife 19 years. Out of this wedlock a son was born on 29th December, 1963. The wife withdrew from his society without any reasonable excuse or justification on 20th August, 1964. He had not got good relations with Sewa Singh, the husband of the elder sister of his wife. The said sister and her husband were responsible for this estrangement between him and his wife. His father-in-law was not alive and thus Sewa Singh, in order to harass him, had dissuaded the appellant from living with him. He had previously filed a petition u/s 9 of the Hindu Marriage Act on 22nd February, 1964, because she had withdrawn from his society without any justification with effect from 25th September, 1963. Later on during the course of the trial of this petition, after the persuasion of the respectables of the village, she came to live with him in the first week of June 1964 and continued to live amicably with him, with the result that he got that petition consigned to the record-room On 2Cth August, 1964, however, she left his house without any reasonable cause. He, therefore, filed the present petition on 24lh August, 1964. He also alleged that she had filed an application u/s 483 of the Code of Criminal Procedure and the same was fixed for 8th September, 1964 for evidence.

This petition was contested by the wife. She denied the allegations made by her husband that she had withdrawn from his society without any reasonable excuse or at the instance of her elder sister''s husband. She further denied that Sewa Singh was in any way responsible for the estrangement between her and her husband. Her case was that after the marriage of the parties, she lived for about six months with her husband but even during this period his treatment and that of his mother and sister was not good towards her and they used to harass her. The husband often gave beating to her and within six months of the marriage, she was sent away to her mother, who then along with other respectables approached the respondent to take her back and treat her properly. Under that pressure, he agreed that she might live with him as his wife. Soon after she became pregnant and one day she was shocked to see her husband and his brother''s wife in a compromising position. It then dawned on her that the ill-treatment given to her by her husband was due to his illicit connection with his brother''s wife. As she protested, the respondent, in order to avoid further publicity of that fact, took her to Srinagar and kept her there for about four months. However, during that period also his treatment towards her was not good. Even there he beat her and often threatened to kill her if she made any further protest about his liasion with his brother''s wife. On return to Batala, where both of them used to live, this ill-treatment continued. Her husband harassed her and ultimately in September, 1963, she was turned out of the house after her jewellery and valuable clothes were taken from her and she was then sent to her mother. Even after that, when her mother approached him to take her back, he demanded Rs. 2,000/- from her so that he might be able to start some business. Her mother was a poor widow and was thus not in a position to fulfil the demands of the respondent. A son was later on born to her in her mother''s house in the end of year 1963. As the respondent was not maintaining her and her son, she filed an application u/s 488 of the Code of Criminal Procedure in the Court of the Magistrate, 1st Class, Batala, in February, 1964. As she was willing and ready to perform her marital obligations, she at the instance of the respectables agreed to give another chance to the respondent to improve his behaviour and accordingly went to his house in the month of June 1964. As she had already a bitter experience of the cruel treatment of her husband, the application u/s 488 of the Criminal Procedure Code was allowed to remain pending till she was satisfied with his behaviour. She tried to please him in every possible manner and, in fact, she again became pregnant, but the respondent did not improve his behaviour at all, with the result that she had to inform the Magistrate, that she could not tolerate the harsh and cruel treatment of her husband and that her life was in danger. Thereupon, the Magistrate allowed her to go anywhere she liked. This order was passed by him on 20th October, 1964 and thereafter she came to reside with her widowed mother. This petition u/s 9 of the Hindu Marriage Act was filed by her husband only as a counterblast to her application u/s 488 of the Code of Criminal Procedure.

On the pleadings of the parties, the following two issues were framed:

Whether the respondent (wife) withdrew herself from the company of the petitioner (husband) without any sufficient cause?

Whether the petitioner (husband) treated the respondent (wife) with such cruelty as to raise an apprehension in her mind that it would be harmful and injurious for her to live with him?

It was found by the learned District Judge that the wife had withdrawn herself from the company of her husband without any sufficient cause and that it had not been established by her that her husband treated her with such cruelty as to raise an apprehension in her mind that it would be injurious for her to live with him. On these findings, a decree for restitution of conjugal rights was passed in favour of the husband. Against this order, the present appeal has been filed by the wife.

After hearing the counsel for the parties, I am of the view that the learned District Judge had approached the consideration of this case from an erroneous point of view. He seems to be under the impression that if the appellant had not been able to prove issue No. 2, the respondent on that ground alone is entitled to a decree for restitution of conjugal rights. He has clearly stated in his judgment that since the wife had failed to prove her allegations of cruelty and adultery, there was no reason why the husband should be denied the relief claimed by him. This is not the correct position in law. Since the husband had filed this petition for restitution of conjugal rights under S. 9 of the Hindu Marriage Act on the ground that his wife had withdrawn herself from his company without any sufficient cause, he had to prove that fact before he could be granted any relief, Simply because the wife could not establish her defence that the husband had treated her with cruelty, that alone would not entitle the husband to claim relief. As held by Grover J. in Mst. Gurdev Kaur Vs. Sarwan Singh, that 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 (1) of section 9 of the Act itself lays down certain conditions which must be fulfilled before a decree can be granted. It will have to be seen, firstly, whether the husband or the wife, as the case 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 made in such a petition. Thirdly, there should be no legal ground why the relief should not be granted. Thus it will be seen that the onus is on the husband, who had filed the petition u/s 9, to make a prima facie case for restitution of conjugal rights.

As observed by Bedi J. in Teja Singh Subedar Santa Singh Vs. Sarjit Kaur, , it was well-known that a wife and particularly a Hindu wife would not leave her husband''s shelter, unless she was forced by circumstances to do so. In the instant case, the appellant had two children from the respondent and it is difficult to believe that she would like to leave her husband and break her matrimonial home, unless there was some compelling reason for doing so. The only reason suggested by the husband in this connection was that the appellant was doing all this at the instance of Sewa Singh, R.W. 4 the husband of her elder sister. It is not clear on the record as to why the appellant should be prepared to break her home at his instigation. It is not suggested that she had any illicit connection with him, because this suggestion was specifically put to the respondent when he appeared in the witness-box as A.W. 5 and he categorically denied it. It is admitted in evidence that he was responsible for this marriage. The mother of the appellant is a poor widow and it was said that it was Sewa Singh who was looking after her and the appellant. It is, therefore, not easily understood as to why he would like to break this marriage for which he himself was responsible and thereby also increase his own financial burden. The case of the respondent was that Sewa Singh''s relations with him were not good, so much so that he had to lodge a report against him with the police and Sewa Singh also filed a complaint u/s 500, Indian Penal Code, against him. This report, however, was made to the police on 11th/12th February, 1964 and the complaint by Sewa Singh was filed in January/February 1965. The relations between the appellant and the respondent had become strained much earlier to the extent that the appellant had to file a petition u/s 488 of the Code of Criminal Procedure on 4th February, 1964. In the first place, the enmity suggested by the respondent was not of such a serious type as would induce Sewa Singh to break the home of the respondent, because it is in evidence that the matter regarding the report lodged by the respondent was compromised and in the complaint filed by Sewa Singh the respondent was discharged without being even summoned. Secondly the alleged enmity was of a date later than the time when the appellant withdrew from the society of the respondent and their relations became strained. I am, therefore, of the opinion that the appellant was not leaving the home of her husband at the instance of Sewa Singh as suggested by the respondent. As I have said, this was the only reason given by the husband in this respect and even this he has failed to establish.

1 was taken through the entire evidence produced by both the parties and after going through the same I am of the opinion that the version given by the wife is correct. I was impressed with the statement made by her. Both the husband and the wife have given evidence in support of their respective versions, which I have set out in the earlier part of my judgment and it is not necessary to recapitulate them here. It is noteworthy that the appellant was not cross-examined on any material point by the respondent and her statement, therefore, remains unchallenged. Apart from the physical ill-treatment, the appellant had stated that her husband had an illicit liaison with his brother''s wife. The learned District Judge has observed that there was only the uncorroborated statement of the appellant herself on this point. That is so, but one cannot lose sight of the fact that it is very difficult to get direct evidence with regard to these matters. It will be all the more difficult for the wife to get such evidence even if there was one available. There is one circumstance, however, which does lend support to her version. Previously, the respondent used to live in the same house with his brother and his wife. When the appellant filed an application u/s 488 of the Code of Criminal Procedure and the proceedings were pending before the Magistrate, he advised the appellant to go back to her husband and give him another chance. There the respondent made a statement that he would treat her well and would live in a separate house. It is after this assurance that she went back to live with him. This definitely shows that the appellant was making a grievance about the respondent''s living jointly with his brother''s, wife and after she was given an assurance that her husband would live away from her, that she decided to go back and give him another chance.

The learned District Judge has also mentioned that the appellant never complained to Sewa Singh about this matter, although she had told him that the respondent had been taunting her that she had brought less dowry and on that account had turned her out. No point can be made against the appellant on this account, because usually one does not publicise these things and tries to hide them as far as possible.

Then it was said by the learned District Judge that the appellant had been writing letters to her relations and in none of them she had complained that the respondent was not treating her well. On the other hand, those letters showed that she was very happy in her home. The learned District Judge has overlooked the statement of the appellant as R.W. 2 where she had mentioned that the reason for not so doing was that the respondent used to be very particular to see as to what she wrote in the letters to her relations. It is pertinent to mention that the postcard and the letter, Exhibits A. 1 and A. 3, that had been produced by the husband in this case, clearly show that he used to see the letters written by his wife. As a matter of fact, he himself has also written on one side of both post-card and the letter. Under these circumstances, she could have possibly not written anything against her husband or about the ill treatment that was meted out to her.

There is one other matter which also needs mention and which shows that way in which the respondent used to harass his wife. As I have mentioned above, during the application for maintenance the appellant had gone to live with her husband at the instance of the Magistrate before whom that application was pending. She started living there and again became pregnant. During those very days, the husband lodged a report to the police against his mother-in-law to the effect that she had come to his house and stolen his wife''s clothes. Along with the report, he also stated that she had apologised and no further action be taken on the report. If that was a fact, then it is not understood as to why he went to the police at all. The reason was obvious that he wanted to defame and harass both his wife and her mother, because the police had actually gone to the mother-in-laws house to investigate that matter.

As regards the witnesses produced by the respondent, two of them, namely, Kapur Singh, A.W. 1 and Balwant Singh, A.W. 4, are his near relations, A.W. 1 is married to the real sister of the respondent, while A.W. 4, is his elder brother. Much reliance cannot be placed on the statement of Mohan Singh, A.W. 2, because he has stated in cross-examination that after the appellant had given birth to a son, she had not lived with the respondent. This is obviously incorrect, because it is the common case of the parties that she had gone back to live with him during the proceedings in the application u/s 488 of the Code of Criminal Procedure. A.W. 2 claims to be a neighbour of the respondent and he would have easily known this fact. Teja Singh. A.W. 3 cannot be called independent because he was the scribe of the deed of apology alleged to have been written by the mother-in-law of the respondent when he lodged a report against her with the police. This deed was not attested by any helper of the mother-in-law though, according to this witness, some were present at that time.

So far as the appellant is concerned, she had produced Tara Singh, R.W. 1 to prove the report made by the husband to the police against her mother. She also produced Harbhajan Singh, R.W. 3, who was one of the persons who had gone to the respondent in a deputation at the instance of the appellant''s mother, so that the respondent may keep her in the house. He went to the husband on both the occasions. On the first, he along with others had prevailed upon him to keep her and on the second he point-blank refused to do so. She had also produced Sewa Singh as R.W. 4, who corroborated her testimony.

The application u/s 488 of the Code of Criminal Procedure was filed by the appellant on 4th February, 1964 and this petition u/s 9 of the Hindu Marriage Act was instituted by the respondent on 24th August, 1964. In the circumstances of this case, I am of the opinion that this petition was a mere counterblast to the appellant''s application u/s 488 of the Code of Criminal Procedure.

In view of what I have said above, I would reverse the findings given by the learned District Judge and hold that the respondent has failed to prove that the appellant had withdrawn herself from his company without any sufficient cause. She, on the other hand, has been able to establish that the respondent treated her with such cruelty as to raise an apprehension in her mind that it would be harmful and injurious for her to live with him. The appeal is, consequently, accepted and the decree for restitution of conjugal rights passed by the learned District Judge is set aside. In the circumstances of this case, however, I will leave the parties to bear their own costs.