Pareed Pillay, J.:— Appellant (wife of the respondent) challenges the judgment in O.P (HMA) 237 of 1987 of the I Additional Sub-Judge, Trivandrum granting restitution of conjugal rights. Respondent filed the petition under S. 9 of the Hindu Marriage Act for a decree for restitution of conjugal rights alleging that without reasonable excuse appellant had withdrawn from his society. Challenge against the impugned judgment is on the ground that the learned Sub-Judge erred basically in granting decree solely on the ground that there was no physical assault on the appellant.
2. Appellant was married by the respondent on 21-1-1986. A child was born in the wedlock on 5-3-1987. As against respondent's contention that his wife had not returned to her matrimonial home, the latter contended that he ill-treated her and took her to her father's house on 9-11-1986 and since then abandoned her. Appellant has filed a detailed statement narrating the difficulties encountered by her during her short span of marital life with the respondent. It is alleged by her in her statement that her husband is an alcohol addict and that he used to return from his place of work very late in the night inebriate and used to torture her taunting that she is not having sufficient properties to be worthy of his wife. It is further stated that he used to persistently quarrel with her on a property matter and that he had never cared to see the child at any time.
3. Appellant examined as C.P.W 1 deposed as to the cruel treatment she had to undergo when she was living with the respondent. Cross-examination has not brought out any factor to discredit her testimony. Ext. B-1 letter sent by her to her father long prior to the initiation of proceedings sheds sufficient light as to the ignominious and cruel treatment she had suffered in the house of the respondent. Ext. B-1 shows that she had implored her father to take her away from the house of the respondent. Evidence of C.P.W 1, Ext. B-1 and the circumstances of the case clearly disclose that the appellant had reasonable excuse for withdrawal from the society of the respondent. As rightly contended by the learned counsel for the appellant, the learned Sub-Judge was fundamentally wrong in holding that this is a case where decree can be granted in favour of the respondent as physical assault has not been proved. Evidence in the case that the appellant was put to considerable mental strain and anguish has been totally overlooked by the learned Sub-Judge.
4. Contention that appellant-wife has not established physical cruelty on the part of her husband (respondent) and so decree for restitution of conjugal rights would automatically follow is legally untenable. Manifold factors can arise to sour the happy matrimonial relationship of the couple. Short of physical violence, there may be acts of omission and commission on the part of the spouses to cause mental agony of the worst order. Evidence in the case that the respondent cared a two pence for the welfare of the appellant after she went to her house for delivery and the new born baby certainly amounted to infliction of mental cruelty on the appellant.
5. Learned Sub-Judge's statement that there is lack of pleadings regarding cruelty is totally erroneous. It only shows that the Sub-Judge has not cared to peruse the pleadings even in a cursory manner.
6. Court cannot take a cavalier attitude in a case where a hapless mother with an infant keeps off from her husband. Normally no wife would do that. To hold that the wife should prove physical assault and then only the petition for restoration of conjugal rights can be dismissed in her favour is thoroughly opposed to legal norms, fair play and propriety. Mental pain caused to the wife by husband cannot be lightly brushed aside on the ground that there was no physical violence or torture.
On going through the evidence we hold that respondent is not entitled to decree for restitution of conjugal rights. The judgment in O.P (HMA) 237 of 1987 is set aside and the petition stands dismissed. M.F.A is allowed.
Order accordingly.