SURRINDER KAUR Vs. GURDEEP SINGH

JUDGEMENT

(1.) THE petition giving rise to this appeal was instituted by Gurdip Singh (now the respondent) for restitution of conjugal rights under Section 9 of the Hindu marriage Act, 1955 (hereinafter called the Act) against Shrimati Surinder Kaur.

(2.) HIS case was that he was married to her on 10-12-1961 at Ludhiana and thereafter they had been living as husband and wife, and were residing as such at chandigarh. On 31-12-1963, she left Chandigarh representing that she would be going to Ludhiana to see her mother. Thereafter, she did not return to his house. So, he made several efforts even through relations to secure her society but she declined to return to the house. Therefore, in the year 1964, he moved petition under Section 9 of the Act for restitution of conjugal rights against her, but the said petition was allowed to be dismissed for default as a compromise had been arrived at between them that she would be residing with him at Chandigarh. When she did not abide by the said compromise, he (the respondent) made efforts to secure her society and also approached relations for help in the matter. All these efforts failed and he moved the present petition and sought decree for restitution of conjugal rights on the averment that she (the appellant) had withdrawn from the society without reasonable excuse. The petition was contested by Shrimathi surinder Kaur. She admitted the factum of marriage but controverted the other material allegations of Gaurdip Singh and pleaded that he showed no liking for her from the beginning that he had turned her out of his house at Chandigarh twice that he had also doubted her character and that he failed to pay the amount of Rs. 150/- which had been assessed as litigation expenses in the previous petition and, as such, the present petition was not maintainable. Hence, the case was tried on the following issues:-

(3.) THE facts, that the parties were married at Ludhiana on 10-12-1961, that they had been living as husband and wife thereafter, that they had last resided as such at Chandigarh till 31-12-1963 when the appellant went to Ludhiana, and has been residing with her widowed mother there since then, that she has been in service as teachers in Kaligidhar Khalsa Higher Secondary School, Ludhiana, since 1964, that hira Singh is the real uncle of the appellant and he resides at Delhi and that, at least once he had called the parties to Delhi for resolving their differences but he could not succeed therein, are amply borne bout by the evidence present on record and were not disputed. The learned counsel for the appellant challenged the decree with the contentions that the respondent had been guilty of cruelty which compelled her (the appellant) to seek shelter in the house of her mother, that there had been delay in the making of the petition and that the motive of the respondent in seeking restitution of conjugal rights was ulterior, as he wanted to divorce her and since the previous petition should be deemed to be pending, the present petition was not competent. 'cruelty', whether physical, legal or mental, is good defence in a petition, moved for restitution of conjugal rights. The question for determination is as to whether it is the cruelty which preceded the withdrawal of one spouse from the society of the other which is of importance or the cruelty subsequent to such withdrawal can be of any relevance. It is clear from section 9 of the Act that it is not the mere withdrawal of one spouse from the society of the other, that could entitled the latter to seek decree for restitution of conjugal rights against the former. The deserted spouse has further to show that the withdrawal from his or her society by the deserting spouse is without reasonable excuse. Therefore, if my reading of section 9 of the Act is correct, I feel that it is the cruelty which had been shown by the deserted spouse towards the deserting spouse before the withdrawal of the latter from the society of the former, which is of importance. No human being, when at fault, would be bold enough to admit his default. Having regard to human nature, as it is, if unfortunately matrimonial relations are ruptured between husband and wife, both of them would be prone to invent versions and would not hesitate to throw blame for the estrangement on each other. The said estrangement is further hound to give rise to various suspicions in their minds against each other. Therefore, the conduct of the husband or wife, subsequent to the withdrawal by one from the society of the other, may at the most be relevant evidence to indicate their intentions or may be taken into consideration for appreciation of the evidence led in proof of the excuse or excuses advanced for the said withdrawal, but the same, in my opinion, cannot be used to justify the said withdrawal. According to the Hindu law, marriage is a holy union. The relationship between husband and wife imposes upon each of them certain marital duties and gives each of them certain legal marital rights. The marriage imposes a duty on the husband to protect his wife, to give her a home to provide her with comforts and necessities of life within his means and to treat her nicely. It enjoins on the wife the duty of attendance, obedience to and veneration for the husband and to live with him wherever he may choose to reside. In the case in hand, the respondent was and is employed at Chandigarh. Therefore, by entering into marriage with him, the appellant had placed herself under obligation to reside with him at chandigarh. As the evidence stands, she did come to Chandigarh and resided with him till 31-12-1963. The respondent stated and the appellant admitted, that in the year 1963 she got herself employed as teachers in the Khalsa Model School, chandigarh, Certificate Exhibit P-2, issued by the Lady Superintendent of that school, points out that she had worked as J. B. T. teacher from 2-5-1963 to 22-51963 in the said institution. Thereafter, she resigned from that institution and joined or rejoined as teacheress in Kalgidhar Khalsa Higher Secondary School, ludhiana. The respondent maintained that she had resigned from the Khalsa model School, Chandigarh, without his consent and had gone back to Ludhiana where she had been working as teacheress in the School referred above. Now, the circumstance of the appellant's resigning from the Khalsa Model School, chandigarh, and joining service as teacheress in Kalagidhar Khalsa Higher secondary School, Ludhiana, had undoubtedly placed her in a situation which has rendered her unable to discharge the marital duties, imposed upon her by marriage, towards the respondent, Judgments delivered in Gaya Prasad v. Mst. Bhagwati, AIR 1966 Madh Pra 212, and Smt. Tirath Kaur v. Kirpal Singh AIR 1964 punj 28. support the view that where a wife accepts service without husband's consent at a place different from his home, it would be reasonable to infer that she has withdrawn, without reasonable excuse, from his society.