C.G Suri, J.:— Shri Hardip Singh has filed this appeal against the order dated 13th August, 1968 of Shri Madan Lal Singhal, Sub-Judge 1st Class, Barnala, whereby his petition under Section 9 of the Hindu Marriage Act, 1955, for restitution of conjugal rights against his wife Smt. Dalip Kaur alias Tej Kaur respondent was dismissed, leaving the parties to bear their own costs.
2. A marriage between the parties had been solemnized 10, 11 years ago and they had lived together as husband and wife until about 10 months before the filing of the petition in March, 1967. Two male children had been born during the wedlock and they are at present in the custody of their mother. The parties have given different versions as to the reasons that led to their separation after they had lived together for about 10 years and had been blessed with two male children.
3. According to the appellant, his wife had left the house with the children as she wanted him to set up a house separate from his parents and that he had declined to do so. The respondent's case is that her mother-in-law was harassing her all the time and used to threaten that she would prevail upon the appellant to marry again and that she had been turned out of the house after being given a beating. She offered to come back to her husband's house if he separated from his parents.
4. The pleadings of the parties had given rise to the following two issues:—
(1) Whether the respondent has withdrawn from the society of the petitioner without reasonable cause or excuse?
(2) Whether there is no legal bar to the granting of the petition.
5. The learned trial Judge had found, inter alia, that the respondent was not pulling on very well with her mother-in-law and that the appellant was compelling her to live in his parental house where it was difficult for the respondent to live in peace. The fact that the appellant had not sent his wife and children any maintenance or expenses for about 4 years had also influenced the decision. There was no clear finding that the wife had ever been beaten or otherwise cruelly treated. The respondent was, therefore, found to be justified in withdrawing from the appellant's society.
6. It is in evidence that the appellant's brothers have shifted to another village and the appellant is helping his old parents in the cultivation of the ancestral land. He is the only one to look after them in their old age, and it cannot be said that there are no sufficient grounds for his failure to accede to the respondent's demand that he should set up a separate house. I can very well imagine that the relations between the respondent and her mother-in-law have not been very happy or cordial but in spite of that the respondent has lived in that house for very nearly 10 years and had borne the appellant two male children. There would be small birckerings whenever two persons have to live under the same roof and it is not every difference that should lead to the wrecking of the marriage or the marriage of the future of the children. Even the spouses may go on having petty bickerings and quarells for a life time and still make a thumping excess of the marriage Married life would be impossible without a spirit of give and take, and mutual adjustments and compromises. There is reliable evidence on record that there are no serious differences between the parties and that their differences can be patched up if a correct approach is made by the parties. The respondent's witness Mit Singh, R.W 4 had asked her as to why she did not go back to her husband. She expressed her willingness if some one were to come to take her. She apprehended that the appellant would marry again. The respondent had even told that witness that in spite of the fact that her mother in law was always fighting with her, she would willingly go back to her husband if somebody were to come to take her there. The appellant's witness Sital Singh admits that there have been differences between the respondent and her mother-in-law but the appellant has been making attempts to bring back his wife and children. He had filed an application before the Gurdian Judge at Sangrur for the custody of the children under section 25 of the Gurdian and Wards Act but the Gurdian Judge had dismissed that petition on 31st July, 1968 on the ground that a petition under section 5 of the Hindu Marriage Act was pending between the parties and that the matrimonial Court was seized of the matter and that the Gurdian Judge need not, therefore, pass any orders at that stage. It had, however, been observed that if the matrimonial court failed to make an order with regard to the custody of the children the appellant could approach the guardianship court again sometimes later. There is no reliable evidence that the appellant had ever beaten or cruelly treated his wife. He has sound reasons for living with his parents and helping them in the cultivation of their ancestral land in their old age. The appellant and his mother are likely to behalve better after the respondent has made them suffer the pangs of separation for more than 3 years. There are no sufficient reasons on which the respondent can justify her withdrawing from the husband's society.
7. In Shyamlal v. Smt. Sarswati Bat . A.I.R 1967 M.P 204. a Division Bench observed that the just cause entitling the wife for living separate must be grave and convicing and that legal cruelty has to be considered by keeping in view the physical and mental conditions of the parties, their age, environments, standards of culture and status in life. Standard of proof for matrimonial offences is the same as in criminal cases and the charge has to be established beyond reasonable doubt. A husband cannot be denied a decree for restitution of conjugal rights unless the wife proves just cause for staying away from the husband. In Gurdip Kaur v. Partap Singh . 1967 69 P.L.R 603. Pandit, J. held that it was difficult to hold as a broad proposition of law that simply because the husband was unable to give any explanation as to why his wife had left his house, his application for restitution of conjugal rights should be dismissed on that ground alone, even though he had been able to prove that his wife had withdrawn from his society without any reasonable cause. It was for the wife to prove and explain her defence that she had been turned out by her husband after she had been beaten. The precise reason why the wife left the house of the husband would be specially within her knowledge and it is for her to plead and prove those precise reasons. Koshal J. had taken the same view in Roshan Lal v. Basant Kumari . 1967 69 P.L.R 566. and the material portions of the ruling have been reproduced by the learned trial Judge in his judgment. The husband's appeal was accepted in that case even though the wife was held to have a say in the matter of her husband setting up a residence separate from his parents. In Peddigari Annapuranamma v. Peddigari Appa Rao . A.I.R 1963 A.P 312. it was held that the reasonable excuse which could be successfully pleaded by the wife in defence of her husband's petition for restitution of conjugal rights would be one which would afford her a ground either for judicial separation or for nullity of marriage or for divorce. What is reasonable excuse under sub-section (1) is indicated in sub-section (2) of section 9 of the Hindu Marriage Act, 1955. The learned trial Judge has not given any cogent reasons for ignoring this ruling of a Division Bench. He has not stated any authority in support of his observation that section 9(1) has to be read independently of section 9(2). In Gurdev Kaur v. Sarwan Singh . A.I.R 1959 Punj. 162 a different view had been taken by Grover, J. while observing as follows:—
“Where the husband is guilty of conduct which falls short of legal cruelty in the sense that it is not cruelty of the kind mentioned in S. 10(1)(b) of the Hindu Marriage Act, but his misbehavour or misconduct is such that the wife is fully justified in separating herself from him, the husband cannot succeed in his petition under S. 9 as it will not be possible for the Court to say that the wife has withdrawn herself from his society without reasonable excuse. In a case of this nature the petition shall fail not because of any defence set up by the wife under S. 9(2) but it cannot succeed on account of the non-fulfilment of one of the essential ingredients of sub-section (1) of S. 9. Apart from the provisions of S. 9(1) even if a proceeding is undefended it is obligatory on the Court to be satisfied under S. 23(1)(a) that the petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief. This makes the position clearer that the Court is bound to take into consideration the conduct of the petitioner. If the petitioner has by his own misdeeds forced his spouse to leave him, he cannot be allowed to take advantage of his own wrong and ask for the assistance of the Court to perpetuate his own wrong doing.”
8. The facts of the case cited were, however, different from the facts of our case. In the case cited it had been found that the wife was being kept in illegal confinement by the husband and that this amounted to cruel treatment even if it fell short of legal cruelty. Wrongful or illegal confinement was sure to have a harmful or injurieus effect on the health of the wife. No such cruelty on the part of the appellant has been proved in this case by the respondent.
9. The appellant's failure to provide maintenance for the respondent and the children was due to the fact that she had not made any application for maintenance and was found to have independent income sufficient to support herself and the children. She was not entitled to any maintenance if she was living separately from her husband without any sufficient cause. She had made an application under section 24 of the Hindu Marriage Act, 1955, during the pendency of this appeal and Pandit, J. had dismissed that application on August 4, 1969. The appellant's failure to make any provision for the maintenance of his wife and the children cannot, therefore, be made a ground for declining him a decree for restitution of conjugal rights against his wife.
10. I, therefore, accept the appeal and grant the appellant a decree for restitution of conjugal rights against the respondent. Parties are left to bear their own costs throughout.
11. Appeal allowed.