CHANDER DEV CHADHA Vs. RANI BALA

JUDGEMENT

(1.) This is an appeal against the dismissal of husband's application under Section 9 of the Hindu Marriage Act for restitution brought by him. The parties were married on 30 April, 1967. The first male child was born on 1.2.1969. His name is Banti. The second male child was born on 22.11.1974. Ear]ieronl2thNovember,1974 the application under Section (9) of the Act has been brought by the appellant husband alleging that the respondent wife had left the matrimonial home without any justification and he is seeking the restitution.

(2.) The wife had denied that she was keeping away without any reasonable excuse. It was pleaded that she was treated cruelly and that he used to give her beating. The Trial Court by the impugned order found that the wife was justified in withdrawing from the husband's society and dismissed the application. The husband being aggrieved has come up in this court in appeal. It is common case that the wife left the matrimonial home on 24.6.1974 and is living in Kapurthala with her parents' family. Of course, there is a serious dispute as to the .circumstances and the reasons why she left. It appears that after marriage the husband who belongs to Delhi joined with the brothers of the wife in a business venture at Kapurthala. The appellant then shifted to Kapurthala, within about 9-10 months of the marriage i.e. sometime in the end of 1968. But after some time this business failed and he alleges that he came back from Kapurthala and the wife went subsequently for her first delivery according to the customs. To start with, the appellant and the respondent lived with the family at Lajpat Nagar, then to Church Lane and then according to the appellant at the instance of the respondent he took a separate house in Krishan Nagar. He thus denied having given any beating to her. The respondent's case as put up by her in evidence is that ever since the marriage the husband was treating her cruelly and used to beat her and even suspected her character and openly told her that she was just one of the women. She states that she stayed in her parents family from 1969 onwards and it is only some time in January/February 1974 that at the intervention of some people she came back with the husband to Delhi and then left Delhi in June, 1974 because there was no improvement in his behaviour. Mr. Sahni the learned counsel for the appellant challenged the finding of the Trial Court as to the reasonableness of the excuse for the- wife withdrawing from the husband's society. It is contended that there was no proof of any cruelty or misbehaviour justifying the withdrawal by the wife. In the written statement the plea taken was one of justification by the: wife by saying that the behaviour of the husband was both cruel and indifferent towards her and that the appellant also used to run away from the. parents to unknown places and this attitude remained unchanged and indifferent even after January/February, 1974 when she came back from Kapurthala. The first criticism.by Mr. Sahni was that according to the: respondent she had allegedly remained continuously in Kapurthala from 1968 onwards till January, 1974 when she was forced to go back from Delhi to Kapurthala in June, 1974. My attention has been drawn to number of letters to show that the respondent with her children were in Delhi during this period. These letters which have been referred are for the period 1973-74.They do suggest that the respondent was, though for some time at Kapurthala but also certainly for sometime at Delhi. Thus EX. Public Witness .3/7 dated 30.4.1978 a letter written by the brother of the respondent to the father of the appellant mentions about the appellant and the respondent and Banti having reached Kapurthala which apparently does show that they had all come together from Delhi. The letter Ex. Public Witness .3/6 dated 29th December, 1973 written from Kapurthala by the father of the respondent also indicates that the respondent and Banti were at Delhi at that point of time. Ex. Public Witness .3/1 of February, 1974 is a letter from Kapurthala again to Delhi in which querry was made if Banti would be school going. Mr. Sahni says that this proves that Banti must be in Delhi but that may be equally consistent with the plea even of the respondent that she had come to Delhi in January, 1974. The statement of respondent that she never came to Delhi in between 1969 to 1974 is not absolutely correct. It cannot be accepted that in between 1969 to 1974 she never came to Delhi from Kapurthala. But this does not prove the. suggestion of the appellant that from 1969 to 1974 right up to June, 1974 there were normal relationship of the two and his case does not automatically stand proved from the fact that the respondent has exaggerated in stating that she never came to Delhi in between 69 to 74. My attention was also invited to number of letters written by the respondent to the appellant from February to November 1978 i.e. Ex. P/1. Ex. P/1 is dated 21.2.1973 written by the respondent to the appellant giving the usual family information. A reference was made by Mr. Sahni to various letters to show that the contents of these letters apparently suggest that there was normal relationship between the wife and the husband. A perusal of these letters no doubt show that there was a steady correspondence from the wife to the husband and couched in quite intimate and found terms in which the respondent wrote affectionately though she was complaining that she was not giving response to the letters and pleading with the appellant to come to Kapurthala due to illeness of her father. Also complaining that inspite of her continuously writing she had not been receiving any reply. I am prepared to accept that there was some confusion in relationship and a lack of communication between the appellant and the respondent for the period 1969 to 1973. But as to how much mis-understanding or mistrust of each other was there cannot exactly be located; though from the letters of respondent it does appear that the respondent was carrying on the burden and a grievance that the affection was only from her side and was not being reciprocated by the appellant. Whatever the position may be it is an admitted case that she did come back in January, 1974 to Delhi, (although according to the appellant was all the time in Delhi). She however went away to Kapurthala in June, 1974 and this unfortunately become the final break. The version of how and why she went on 24th June, 1974 differs radically. The respondent maintains that the appellant himself had come to the Railway Station see her off when she went with her brother, and had told her to stay away and if she came back she would be thrown out of the house while the appellant maintains that he was away on work and when he came home in the evening he found that she was not at home and was greatly worried about her. The appellant says that he tried to find out from Gita Colony where some of the relations of the respondent lived Bat they only told him that she might have left for Kapurthala with her child, as her brother had come and because her father was not keeping well. He says he tried to phone to Kapurthala but could not get a connection and he came to know about the whereabouts from the letter Ex. PX1 dated 25.6.1974 written by Shri Siri Ram the brother of the respondent informing him that respondent had safely reached Kapurthala. This letter was replied to as is clear from another letter Ex. PX/2 dated 9.7.1974 received by him from the brother of the respondent, informing him that the health of the respondent's father was not alright. The appellant, however, says that he bad left for Kapurthala earlier after receiving the June letter. According to the appellant he tried to persuade the respondent to come back with him to Delhi but was told by her family members that they will send her back when they like. He says he made efforts to bring her back, but was always snubbed.

(3.) The appellant thereafter moved the application for restitution on 12.11.1974. The main contention by Mr. Sahni was that all the allegations of cruelty, beating alleged by the respondent and also casting aspertion on the character of the appellant, imputing the drunkenness etc. were not mentioned at all in the reply to the petition and therefore any grievance on this score made by the respondent should not have been looked into. Mr. Sahni relied upon (1950 Privy Council 90) Siddik Mahomed Shah v. Mt. Saran & Others & (1950 Privy Council 90) The Bank of India Ltd. & Others v. Jamsetji A H. Chinoy & M/s. Chinoy & Co. to emphasise that no evidence should be looked upon on any point on which there has been no pleading. I am afraid there is no merit in the arguments. On the pleadings the respondent had to lead evidence about the alleged cruelty and the misbehaviour by the husband and therefore a justification for staying away. No doubt, it would add more credibility and acceptance of the evidence if apart from the mere bald allegation of cruelty and misbehaviour the written statement had also specifically given specific instances of misbehaviour and cruelty. But mere fact that details were not so mentioned does not mean that the evidence relating to that has to be shut out. As to what value that evidence should have is a different matter and is certainly for the court to examine. It is true that there is nothing absolutely established on evidence to show that the appellant was a man of had character or used to excessive bout of drunkenness and that he was beating her often. I say this because from the letters of 1973 it is evident that whatever mis-understanding and hesitation in the mind of respondent may have been, it does not show a kind of misbehaviour of the type which is alleged by her in evidence now. No doubt there is consistent refrain of neglect and lack of any appreciativeness by the appellant, but letters rule out the type of drunken husband who was indulging in beating of his wife and the child. There is a certain warmth in the letter which reles out the conduct at least upto 1973. But something did break between the two by 1974 is clear that there is no letter from the wife after she had gone to Kapurthala in June 1974. It may be that the respondent has not proved cruelty on the part of the appellant. But cruelty is only one aspect. The fact that cruelty is not proved does not per se mean that there is no reasonable excuse for the wife to withdraw from the society of the husband. Even the refrain of the letters written in 1973 does show a consistent and persistent complaint and fact -neglect by the appellant. The pleading for the husband's company by the respondent is so persistent and the denial by the appellant is so casual and unfeeling that if the wife gets a feeling of neglect and almost of contempt at the appellants' hand, the inference is not unreasonable. Mr. Sahni suggested that the appellant might not be corresponding with the respondent but that does not mean that he had no heart or he did not reciprocate the sentiments. I find it difficult to accept that if the reciprocation was there the appellant should not have been mould to some reciprocation, however small to the sentiments of the wife which are no doubt over-flowing from the letters of 1973. As a matter of fact, the letters of 1973 which the appellant relies to show that there was no cause of mis-understanding between the two, also proves that she is not unreasonably staying away. It is the appellant's case that upto 19/4 the relationship was very cordial; if so .nothing has been suggested as to what transpired suddenly in 1974 for the wife to stay away. It may very well be that the patience and the humility of the respondent has been stretched beyond limit. Neglect, indifference, by the appellant has probably been piling and gradually, and at last became intolerable by the respondent in 1974. It is not very clear as to why exactly the appellant did not reciprocate the sentiments. How much truth is in the allegation of the respondent about his character and general behaviour is frankly a little difficult to say because evidence of both sides on this aspect is a general and vague one. Anyhow, no objection can be pointed out to the conduct or behaviour of the respondent upto 1974 because the appellant himself admits and maintains that the relations were very cordial. Some tension was no doubt building up, but the fault cannot be with the respondent.