RAMAKRISHNA PILLAI Vs. VIJAYAKUMARI AMMA

JUDGEMENT

(1.) THE common appellant in the two appeals is the husband of respondent in M. F. A. No. 883 of 1986, who is the first respondent in a. S. No. 461 of 1986 and is the father of respondents 2 and 3 in the latter appeal. He filed a petition before the Sub Court , Kottarakkara seeking decree for restitution of conjugal rights against his wife under S. 9 of the Hindu marriage Act. Petition was contested and dismissed. Wife and daughters filed a suit in the same court seeking decree for arrears of maintenance for three years and for future maintenance against him. THE suit was contested but decreed. THE decrees in the two cases are now challenged by the appellant.

(2.) THE spouses belong to the Hindu Nair community. THEy were married on 12-9-1969. THEy lived together for a short while (either for a few days or for a few weeks) in the house of the husband's mother and thereafter shifted residence to the house allotted to the wife under the family partition deed and in which her mother has right of residence. Two children were born in the marriage; in 1983-84 they were studying in the 9th and 5th standard respectively. We are told that the elder daughter is now studying in college. Husband is working as a teacher in a government school. In or about 1983 the husband built a house in his own property. He sent a registered notice in 1983 to the wife calling upon her to go over and reside with him. She sent a reply dated 17-8-1983 (Ext. A3 in the O. P) resisting his claim and alleging neglect, desertion and cruelty on his part. THEse are the admitted facts.

(3.) BEFORE dealing with the evidence and circumstances of the case it is necessary to appreciate the principles of law governing a case like this. Restitution is claimed by virtue of S. 9 of the Hindu marriage Act. The Section reads thus: "9. Restitution of conjugal rights. When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the Court, on being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. It We notice that the explanation was added by the Marriage laws Amendment Act 68 of 1976. By the Amendment Act sub-section (2) of S. 9 was omitted. Sub-section (2) reads as follows: "nothing shall be pleaded in answer to a petition for restitution of conjugal rights which shall not be a ground for judicial separation or for nullity of marriage or for divorce. " A decree under S. 9 or the other provisions of the Act can be passed only in accordance with the provisions of S. 23 of the Act. Sub-section (1) of S. 23 reads thus: "23. Decree in proceedings - (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 (except in cases where 'the relief is sought by him on the ground specified in sub-clause (a), sub-clause (b) or sub-clause (c) of clause (ii) of s. 5) is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and b) Where the ground of the petition is the ground specified in clause (i) of sub-section (1) of S. 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 bb) When a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or under influence; and c) the petition (not being a petition presented under s. 11) is not presented or prosecuted in collusion with the respondent, and d) there has not been any unnecessary or improper delay in instituting the proceedings, 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. "