SURINDER KAUR Vs. MOHINDER SINGH

JUDGEMENT

(1.) THIS is a wife's appeal under Clause 10 of the Letters Patent against the judgment of a learned Single Judge of this Court dismissing her first appeal against the order of the Senior Subordinate Judge, Hoshiarpur, granting a decree for restitution of conjugal rights against her at the instance of her husband Mohinder Singh. After a careful consideration of the entire record of the case and after appraisal of the evidence on record, the learned Single Judge has come to the conclusion that the wife who has emphatically stated that she is not prepared to live with her husband any longer has not been able to make out any reasonable excuse for her withdrawal from the society of her husband. We do not think it to be open to us in exercise of our jurisdiction under Clause 10 of the Letters Patent to reappraise the evidence in order to attempt to come to a different finding. Mr. Joginder Singh Wasu, the learned Counsel for the Appellant, has vehemently argued that the learned Single Judge has not in so many words disbelieved the evidence about the Respondent having pushed her out from the house and having taken her to a well on the outskirts of the village where two witnesses are alleged to have seen the husband giving beating to the wife. Evidence to the above effect was disbelieved by the trial Court. The learned Single Judge does not appear to have accepted it.

(2.) IT has been next contended by Mr. Wasu, that the fact that the husband is not earning anything itself amounts to cruelty. He has relied in this connection on a judgment of the Madhya Pradesh High Court in Baburao v. Mst. Sushila Bai and Ors. : A.I.R. 1964 M.P. 73. wherein it was held that the wife had a just excuse to live away from her husband if she was an educated lady and the husband was uneducated. No such consideration comes in the instant case. The mere fact that the husband is not earning anything does not, in our opinion furnish to the wife a reasonable excuse within the meaning of Sub -section (1) of Section 9 of the Hindu Marriage, Act, 1955, to withdraw from the society of the husband. There is no doubt that even when the conditions mentioned in Sub -section (1) of Section 9 of the Hindu Marriage Act are satisfied, it is in the discretion of the Court whether or not to pass a decree for the restitution of conjugal rights. Such a discretion having been exercised by the trial Court and not having been interfered with by the learned Single Judge of this Court, it is too late in the day for the Appellant to canvass that the petition of the husband should be dismissed at this stage merely because the husband has started trimming his beard or started smoking. Nothing has been pointed out to us which may lead us to think that the discretion was not exercised by the trial Court in this case on anything other than sound judicial principles. We find ourselves unable to go to the extent of holding that merely because there is no possibility of the parties living together in a state of happiness. a decree for restitution of conjugal rights must be refused irrespective of other considerations and evidence of the conduct of the parties. Decree for restitution should no doubt be refused where the attitude of the husband amounts to legal cruelty even in the absence of evidence of actual beating. No such legal cruelty has been proved on the record of this case. We therefore find it impossible to interfere with the judgment of the learned single Judge and upholding the same, dismiss the anneal, though without any order as to costs.