PRAVINABEN Vs. SURESHBHAI TRIBHOVAN

JUDGEMENT

(1.) * * * *

(2.) Now the petition has been fought in the two Courts below on the ground the that wife has deserted the husband the wife contending that there was no animus deserendii and the husband contending to the contrary. This is what I find while looking at the decisions of the two Courts below. But the real question which arises in the case is as to whether the wife has withdrawn from the society of the husband without reasonable excuse. Although the Courts below have framed an issue or a point in this connection I find that the question has been decided more on the basis of the plea of desertion. The real plea which requires to be considered in such a petition is as to whether the opponent spouse has withdrawn from the society of the petitioning spouse without any reasonable excuse. In arriving at a decision on the point the Court must be satisfied (i) of the truth of the statements made in such petition viz. that the husband or wife has without reasonable excuse withdrawn from the society of the other and (ii) that there is no legal ground why the application should not be granted which has reference to the provisions of sec. 23 of the Act. In the instant case what has to be found is whether the statement made in the petition viz. that the wife has withdrawn from the-society of the husband without a reasonable excuse is true. Now it will be clear from the aforesaid statement of facts that the parties belong to the Harijan Vankar community. Both the spouses are well-educated. The husband had passed his B.A. Examination and the wife had failed in the Intermediate Arts Examination at the time of their marriage in May 1964. After the marriage they two lived together at Baroda and of this marriage one female child was born. Some time thereafter the wife took her education for obtaining the primary teachers certificate. She was a Government scholar at the time and did pass the certificate examination. this appears to have been clearly with the consent of the husband. Thereafter she took her service under the District Panchayat of Kaira and was posted at village school in Bamangam some time in September 1467 The husband was at the time serving in a school at Baroda. Earlier the husband had passed his B.Ed. Examination and continued to serve at Baroda. After the wife took her service as a school teacher or mistress in village Bamangam under the District Panchayat Kaira the husband occasionally went to reside with the wife at that village and enjoyed the matrimonial rights. Out of this wedlock another female child is born and there is no dispute on this point. These facts would indicate that it was with the consent of the husband that the wife started her service under the District Panchayat Kaira. This could not have happened but for the consent of the husband. It appears to have been by mutual arrangement that the wife took service under the District Panchayat as the school mistress. It appears from the letter of the husband Ex. 29 dated 4-8-1970 that about that time there was some re-thinking in the mind of the husband. The wife in her letter Ex. 29 addressed to her husband states that she was very much willing to stay with him and to fulfill her obligations of course while continuing her service. To the same effect is her another earlier letter Ex. 27 dated 11th January 1969 The husbands notice Ex. 23 dated 18th December 1969 given through his Advocate alleges that the wife was picking up quarrels and the wife's parents wanted to marry her with some other person and raise money and therefore the wife had gone away with the ornaments and deserted her These allegations were refused by the wife's reply Ex. 42 dated 11th January 1970 and have not been substantiated. The conduct of the husband as evidenced by this notice correspondence and in the letters does not reveal the anxiety of the husband to have the matrimonial obligations fulfilled But it shown that he wanted to have a divorce or to get rid of her Anyhow This appears to have been the under-current of the husbands intention in filing this petition.

(3.) But the more pertinent question is as to whether a wife is entitled to live separately while serving and away from her husband. It is true that the ordinary concept of Hindus of a matrimonial home is that the wife must remain under the roof of her husband. The duty of a wife is to submit to her husbands authority and stay under his roof and not to quit his house without adequate or justifying cause. But in the instant case the wife is serving as a school mistress and by the very nature of her work she is compelled to live separately. She does not refuse an access to the husband. On the contrary she is prepared to live with the husband. She says that she had invited her husband to stay with her at the villages where she is serving. Indisputable fact is that earlier while the wife was at Bamangam the husband had stayed with her and had enjoyed the marital rights and as a result another female child was born. This is thus a case of enforced separation. Where a separation is an enforced one it is impossible to infer from mere fact of withdrawal from cohabitation any intention to bring cohabitation permanently to an end but such an intention may be shown independently. There is no such evidence in the case showing that the wife had a permanent intention to put an end to cohabitation. The location of a wife's work is also an important consideration to be borne in mind in selecting the matrimonial home although in some cases the husbands business or the vocation and livelihood may be a predominant consideration. But neither party has a casting vote. It is unfortunate that in the instant case although both the spouses are educated they have not been able to see eye to eye for reasons not disclosed on record. But that would not amount to saying that the wife had withdrawn from the society of the husband without a reasonable excuse. In my opinion the mere fact that the wife is living separately which separate residence is necessitated by reason of the working condition of the wife and the post which she is entitled under the District Board would not amount to the wife withdrawing from the society without reasonable excuse. The wife is prepared to have the husband under her roof. It is not that the wife has refused to go to her husbands place in Baroda during the school holidays. It is not shown that there was any intention of the wife to bring cohabitation permanently to an end. Even if a case was to be based on the ground of desertion and if such a case was to be considered it must be shown that there is a physical separation coupled with animus deserendii which means the intention to bring cohabitation permanently to an end. Absence of consent and absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form such an intention must be shown. No such material is on record to show that the wife has the animus deserendii. The learned Extra Assistant Judge appears merely to have taken the view that the wife must necessarily stay under the husband and obey the husbands command and therefore the wife's refusal to stay with her husband would amount to withdrawing from the society of the husband. But with respect the learned Judge has not considered whether the act of staying separately in this case amounts to staying away without a reasonable excuse. In my opinion the very posting of the wife and the working conditions of the wife required her to stay separate. In the very nature of things she can serve only under a District Panchayat and being a primary school teacher she has to serve under this Board or any other Board. No service is shown to have been available to her in Baroda where she is prepared to go if she gets such a service. These facts and circumstances when examined in the context of the fact that the wife had taken her education for passing the certificate examination and had taken her service under the District Board first at village Bamangam with the consent of the husband which may be implied would go to show that the wife was living separately by consent and it was by arrangement between the parties that she is serving under the District Board. This conduct of the wife cannot be said to be withdrawal from the society of the husband without reasonable excuse. In my opinion it is a reasonable excuse. Here I may also consider the evidence of the husband who in the cross-examination has stated that even if the wife would come to reside in Baroda after completing her three years service he is not prepared to keep her with him. This is the evidence which has been brought out in the cross-examination of the husband at Ex. 22. This statement coming as it does from the husband in his evidence on oath before the Court shows the working of the mind of the husband. It may be that he does not want the wife to serve but that is not a reasonable way of living a matrimonial life in modern times. In the present society and in the modern conditions a wife cannot be expected to implicitly obey the husband even though the Husbands mandate is not reasonable. In such circumstances there is no case for a decree for restitution of conjugal rights under sec. 9 of the Act. The learned Extra Assistant Judge has not approached the question as it required by law and has not examined the relevant evidence. This is thus a case in which even in the second appeal I am inclined to interfere. I must hold that the husband has failed to prove the plaint allegations or so to say allegations made in his petition for restitution of conjugal rights to which I have referred to at the outset. The husband has not been able to show that the wife has withdrawn from the society of the husband without reasonable excuse. On the contrary the wife's plea that she is serving under the District Local Board in a village school and it was with the consent of the husband that she started receiving her education and started service under the Board would negative the case of the husband. This is thus not a case for grant of a decree for restitution of conjugal rights.