SHAKUNTALABAI BABURAO Vs. BABURAO DADUJI MANDILIK

JUDGEMENT

(1.) THIS is an appeal by the wife from the order of the District Judge dated 10-101960 allowing the husband's prayer under Section 9 of the Hindu Marriage Act for restitution of conjugal rights upon her refusal, without reasonable excuse, to go with him to Bombay, where he is employed as a mechanic and her insistence, in spite of her husband's wishes, of staying at Indore in the house of an aunt, who has been for a long time in loco maternis to her. Though the case has been argued at great length, and almost the entire body of Indian and English Case law on this question has been canvassed, the problems that, arise are comparatively simple and can be formulated thus :

(2.) THE broad facts are as follows. The husband who was about 35 years at the time of his application in 1959, is the son of a cultivator having some land and a house in a village a few miles outside, Indore. He was married in 1946 when, he was about 22 years, and was expecting to become nothing better than mechanic. He had an aunt in Sushilabai Chagan a relation by marriage of the ruling princely house. On the other side, the wife, about 12 years of age at that time, was of a humble parentage, but she had virtually been adopted by her aunt, Saraswatibai holkar, the childless wife of a near relation of the same ruling house. The two aunts, who at that time seem to have been on terms of friendship with their houses within about 3 or 4 furlongs in the town of Indore, decided that the two should be married, the only thing to recommend the husband in the eyes of the wife's aunt in the position of her mother being that "he was a presentable young man. " Whether or not the Holkar aunt had thought of providing for the wife, she never investigated into his earning capacity, and ability to provide. for her adopted daughter, on the lines which she now thinks becoming. Any way, soon after, the young man got a jot at the pite of Gandhi Sagar as a mechanic and went there. At that time they did not set up a house of their own; the wife was living with the Holkar aunt as the short period of stay with the chagan aunt, ended in a quarrel between the two aunts, who by now had begun to dislike each other. From time to time, the husband used to come on leave and spend his time with the wife, mostly at the place of the Holkar aunt, at 24, Ada bazar, Indore. Whether during this period the husband used to send regular remittances to the wife has been the subject-matter of evidence and of discussion. The recollections of the person concerned are vague; but it does appear that from time to time he used to send money and things to the wife, with special care that it reached her, through his friends, ' without passing through the hands of the holkar aunt, who seems to have disapproved of any money being sent to the girl in her charge. Be that as it may, neither the Holkar aunt who was in the position of the mother looking after the wife, nor the wife herself made the least grievance and asked for larger or more regular remittances. The wife was in her teens, and staying with the mother as is a most usual thing in this class.

(3.) ROUND about 1955 or 56 the husband, came to Indore after termination of his job at Gandhi Sagar. At Indore lie was for some time unemployed, and seems to have thought of starting on his own with some machinery establishment. This required money which he was too poor to meet out of the income from his land. Accordingly, he seems-to have suggested either through his wife or through one shri Tare, the legal adviser of the Holkar aunt, that the might advance some money to settle him on these lines; but the aunt had her own ideas and would not advance anything because she had formed an opinion that this nephew-in-law was good for nothing. All the same, he had a job at Indore. During this time he stayed at the house of one or other of the aunts, but the wife was always with saraswatibai.