SHANTI NIGAM Vs. RAMESH CHANDRA NIGAM

JUDGEMENT

(1.) Sri. Ramesh Chandra Nigam had instituted the suit in appeal for restitution of conjugal rights against his wife Smt. Shanti Nigam under Sec. 9 of the Hindu Marriage Act. The court below decreed the suit and being aggrieved from its decision Smt. Shanti Nigam has come in appeal before me.

(2.) The parties were married at Allahabad on the 16th of February, 1951. The appellant was at that time working as the Vice -Principal of the Dwarka Prasad Girls Intermediate College, Allahabad on a salary of Rs. 250/ - per month. The respondent Ramesh Chandra Nigam was also posted at Allahabad as a Judicial Magistrate at the relevant time. He was a widower, his first wife having died in October, 1949 leaving two children - -a daughter Shashi and a son Sharad. The deceased wife was also working as a teacher in the Anne Basant School at Allahabad. The parties lived together at Allahabad till July, 1953 when the respondent was transferred from Allahabad to Varanasi. He remained in Varanasi upto July, 1956 when he was transferred from Varanasi to Kanpur and then he was transferred from Kanpur to Lucknow in 1969. The appellant Shanti Nigam was living with her parents in a house No. 3. West Khusro Bagh Road, Allahabad before her marriage. The respondent had a house at Beli Road, Allahabad where Shanti lived with him after their marriage. Then he shifted to another house at Beli Road where the couple continued to live till July, 1953 when the respondent was transferred from Allahabad to Varanasi. Thereafter the appellant came back to her parent's at West Khusuro Bagh Road and has been living there ever since. Both the parties have been working in their respective services. The appellant is now a lecturer in the Chowdhary Mahadeo Prasad Decree College, Allahabad and is drawing a salary of Rs. 650/ - p.m. The respondent is at present posted as Additional District Magistrate (Judicial) at Sitapur and is drawing a salary of about Rs. 1,000/ - p.m. Two children were born to Shanti Nigam; a daughter Ismita alias Lali on the 14th of February, 1952 and a son Rajesh in May, 1965. Both the parties started their married lives with hopes of happiness and they lived together as such till 1957. Dark clouds had started together even sometime prior to 1957 and they started casting shadows in their lives and there was a positive break between them in 1957. Things continued to drift till May, 1960 when the respondent who was then posted at Lucknow came to Allahabad and took back his wife along with him to Lucknow. They reached there on the 28th of May but evidently their living together at Lucknow did not improve matters. Shanti left Lucknow for Allahabad on the afternoon of 31st May and on the next day the respondent sent a notice to her asking her to resign her job and return back to him at Lucknow and stay with him. In case of failure on her part to do so he threatened to sue her "for restitution of conjugal rights" or for seeking judicial separation from her. She did not pay any heed to the warning contained in the aforesaid notice and the suit in appeal was instituted on 13 -3 -1961. The relief prayed for in the suit was for "a decree for restitution of conjugal rights" in favour of the respondent against the appellant and it was further prayed that the appellant "be ordered to come and live with the petitioner and perform her marital duties." The evidence in the case consist of the statements of the parties and a number of letters which were written by the wife to the husband and by the husband to the wife along with some letters which were addressed by the parties to the sister, brother and the mother of Shanti.

(3.) The court below on a consideration of the evidence adduced before it found that, firstly, "the petitioner has done nothing which can amount to cruelty within the meaning of law and which could give rise to a reasonable apprehension in the mind of the respondent that it would be harmful or injurious for her if she goes and lives with him"; secondly, "the respondent had made up her mind as far back as in May, 1957 that she would not live with the petitioner as a wife and would not discharge marital obligations." She only wanted that the husband and wife should in the interest of the children put up an "outward show that they were husband and wife and nothing beyond that". The wife had kept herself away from the society of the petitioner and no blame can be attached to the husband; thirdly, the plea of the wife that if she was compelled to resign her job it would be "violative of the provisions of Article 19 of the Constitution" had no substance. The appellant had voluntarily undertaken to live with the respondent and perform her marital obligations and a decree for restitution of conjugal rights could not be said to be violative of the provisions of Article 19 of the Constitution. On the aforesaid findings the learned Civil and Sessions Judge allowed the petition and directed that the "respondent should go and live with the petitioner and in case the petitioner does not treat her well she will be furnished with the ground for with drawing herself from the Society of the petitioner. It appears that she had no reason for not going to the petitioner and not discharging the marital obligations." It was alleged by the respondent that while the negotiations for his marriage with the appellant were going on he had insisted that when he was transferred from Allahabad, his wife shall resign and will go him to the place of his assignment. He alleged that he had insisted on the appellant to resign when he was transferred from Allahabad to Varanasi and she refused to do so on one pretext or the other. He had to live a lonely life at Varanasi, Kanpur and Lucknow and when there was persistent refusal on the part of the appellant to resign her job and stay with him permanently then he was compelled to institute the suit in appeal.