BAI KANCHANGAURI CHHAGANLAL Vs. CHANDULAL VIRJIBHAI TANK

JUDGEMENT

(1.) This is a Hindu wifes appeal directed against the decision of the learned District Judge Rajkot given on July 31 1971 in Civil Appeal No. 59 of 1970 thereby reversing the decree of dismissal of the present respondents Hindu Marriage Petition No. 50 of 1968 which was filed on September 2 1968 under sec. 9 of the Hindu Marriage Act 1955 (Act No. 25 of 1955) for restitution of conjugal rights learned trial Judge had dismissed the petition on the ground that the petitioning husband who is the respondent herein had failed to prove:- the averment in the petition namely that the wife had withdrawn from the society of her husband without reasonable excuse. He also found that the respondentwife had proved that she had been treated by the petitioning husband with cruelty. Having regard to these findings the learned trial Judge dismissed the petition. In reaching his conclusion the learned Judge had considered the oral as well as the documentary evidence on record. In husbands appeal against this decision of the trial Judge the learned District Judge has found that there was no proof of legal cruelty against the wife which gave her a reasonable cause to stay away from the husband. He has found that the wife had almost condoned the husbands previous acts. He appears to have approached the case from an erroneous legal approach in considering as he has done in para 8 of his judgment that the wife has to prove just cause for staying away and that the Court has first to decide reasonable wife had withdrawn from the husbands society without any reasonable excuse although he has then observed that even though the burden would be on the husband the husband can show by evidence that and that there was no reason for the wife to refuse to stay with him and if in answer to these allegations the wife comes with a case that there was physical and mental cruelty she has to prove cruelty. The learned Judge has then considered the correspondence exchanged between the parties and seems to have formed an opinion that the correspondence showed the husbands anxiety for the welfare of the wife and children. But the learned Judge has not considered the oral evidence of the parties on record although he has incidentally referred to some part of the evidence. In this approach to the case the learned Judge has allowed the appeal and reversed the decision of the learned trial Judge.

(2.) Mr. H. K. Gandhi learned advocate appearing on behalf of the appellant wife has contended before me that the learned Judge has made a wrong legal approach in so far as he has not followed the decision of a Division Bench of the Gujarat High Court given in First Appeal No. 18 of 1960 on 25 1960 wherein it has been held that the evidence on record should be viewed from the correct angle provided by sub-sec. (1) of Sec. 9 of the Hindu Marriage Act which requires that there must be a satisfaction on the part of the Court about the statement made in the petition and that the wife must be shown to have withdrawn from the society of the husband without reasonable cause. These two factors must necessarily be present before the Court for granting a decree of restitution of conjugal rights. He contended that it was wrong to place the entire burden to prove these ingredients on the wife. Mr. Gandhi contended that the learned Judge has merely considered the correspondence between the parties which is a neutral circumstance and that the he has failed to consider the relevant oral evidence and the relevant circumstances on record. Mr. D. D. Vyas learned advocate appearing on behalf of the respondent-husband has supported the decree of the trial Court.

(3.) Now it is not in dispute that the parties to this appeal are respectively the wife and the husband whose marriage was solemnized according to Hindu religious rites at Rajkot on June 26 1961 The parties belong to Kadia (mason) community. The husband was aged 33 and the wife 27. The husband was serving in Air Force as a corporal at the time of his marriage and was posted at Khadagpur near Calcutta. At present he is posted at Jamnagar since August 1968 and is drawing a total salary of Rs. 195/including dearness allowance per month. The parties went to live at Khadagpur some time after the marriage where the parents of the husband were also residing. The wife was pregnant in the later half of the year 1961 and was sent for delivery to her parental home at Rajkot. It appears that the husband had also gone to Rajkot some time before the time of the delivery which took place on May 17 1962 A child (son) was born to the wife but it died soon thereafter. The husband took away the wife with him to Khadagpur on the 17th day of the delivery although the wife was in a weak state of health and the required period of rest or confinement was not over and although she had felt distressed because of the death of the first child. The wifes case is that at first they stayed at Khadagpur for about two years and during this period her husband who was ill-tempered was beating her and was not allowing her free movements. After two years the husband was transferred to Siligauri in Assam and there they stayed alone that is to say without their parents who continued to stay at Khadagpur. They stayed at Siligauri for a period of about two years. During this period she again became pregnant and was admitted in a Maternity Hospital at Siligauri for delivery and son Rajesh was born to her. According to the wife within the 9th day of her delivery the husband left for Khadagpur alone without making any arrangement for the treatment or care of his wife and child. At Siligauri also she was not well treated and on one occasion the husband had thrown a lantern at her which has left a permanent scar on her forhead on the right side which is visible to a naked eye. The husband has tried to explain his absence from Siligauri during the wifes confinement period by saying that he had gone to Khadagpur to pay respects to his aged parents because it was Diwali time. On completion of two years service at Siligauri the husband was again transferred to Khadagpur where he took his wife and son Rajesh. They continued to live in Khadagpur and the wife was again pregnant while at Khadagpur some time in the latter half of the year 1966. During he stay at Khadagpur she was given the same cruel treatment. Even when her brother Mansukhlal had gone there on a courtesy visit she was not allowed to talk with him. She was then sent away by her husband to her parental home at Rajkot for her third delivery on 15-9-1966 viz. Bombay where her sister was residing. She delivered a child son Sunil at Rajkot on 11-3-1967. Ever since she had to continue to stay at Rajkot at her parental home with their two sons and they have been neglected by the husband and not provided for. The husbands case as set up in the petition is that the wife was not returning to the matrimonial home in spite of his repeated requests and in spite of his having gone to call her personally and this was without any reasonable excuse. It was on these pleadings that the relevant issues were raised by the learned trial Judge and the parties did join the issues. The learned trial Judge has considered the oral evidence of the parties. He has analysed the evidence of the wife and discussed it in paragraph 7 of his judgment. Besides referring to the incident of throwing of a lantern by the husband on the forehead of the wife while she was at Siligauri the learned Judge has also referred to the incident of the husband giving a push to the wife in the presence of the wifes parents. He has also considered the evidence of the wifes brother Mansukhlal who has been examined at Ex. 56 and who has stated that he had gone to Khadagpur and he had found that his sister Kanchangauris condition was delicate and her body had become quite lean and she could not be recognized at first sight. The evidence of Kanchangauri (wife) saying that she was ill-treated while at Khadagpur and Siligauri and again at Khadagpur was accepted by the learned Judge. He had rejected the plaintiffs case that there was no justifying cause for the wife to stay away from the husband. But the learned District Judge has not considered the oral evidence and the relevant circumstances and merely drawn inferences from the correspondence between the parties without reference to the oral evidence and forgetting that a Hindu wife does not Ordinarily show the causes of friction in such correspondence until a point of no return is reached. He has approached the whole case from an erroneous legal angle. He has not even framed specific points for determination as required by Order 41 Rule 31 of the Civil Procedure Code and the only point for determination that he has raised is Whether the decree for restitution of conjugal rights should be granted ? I must say that this is no point at all. The exact questions which arise in the appeal and which require determination must be stated in the judgment so as to focus the attention of the Court and the parties on the specific and rival contentions which arise for determination. Apart from that it appears that the learned judge has without considering the relevant material circumstances accepted the husbands case on a mere reading of the correspondence and granted a decree for restitution of conjugal rights.