J.N Bhat, J.:— This is an appeal against a decree for restitution si conjugal rights passed against the appellant by the District judge Jammu under Section 9 of the Hindu marriage Act by his order dated 2-6-64.

2. The respondent brought the petition against the appellant stating that the parties were married in village Dablebar Tehsil R.S Pura in the year 1956. In 1957 the father of the appellant took her away from the house of the respondent and subsequently did not like to send her back but on the persuasion of the respondent brought the appellant back to his house in the year 1958 where she remained for two or three months. The brothers of the appellant took her away from the respondent's house without his consent. Later on in spite of efforts on the part of the respondent and his father, the appellant did not return. Hence the petition. The wife appellant in her written statement stated that she was and is always prepared to live with the respondent but the trouble according to her had started in the Assembly elections of 1957 when the father of the respondent stood as a candidate from the R.S Pura constituency. The father of the appellant opposed the father of the respondent and supported a National Conference candidate who succeeded as against the respondent's father. This embittered the relations between the family of the respondent and that of the appellant's father. Thereafter the appellant was maltreated and abused by the respondent and his parents and was turned out of the house more than once. Later on the respondent was transferred to Doda. The father of the appellant took her to Doda where the respondent was stationed. Just after a few days of her going there the mother of the respondent came to that place and hardly allowed the appellant to remain with her husband for three months. The husband under the pressure of his mother took the appellant away from Doda and left her on the roadside at R.S Pura. Despite all entreaties on the part of the wife and her parents, the respondent did not at all allow the appellant to remain with him and consequently deserted her.

3. The trial Court of the District Judge Jammu framed the following two issues in the case:

1. Whether the non-applicant has withdrawn from the society of the applicant without any reasonable excuse? OPP

2. Whether the applicant is entitled to any relief in this case? OPP.

4. A number of witnesses was produced on either side. The respondent produced Nidhan Singh, Sardar Singh, Charanjit Singh, Sunder Singh and Suchet Singh as witnesses. The appellant produced Bhola Singh, Bagh Singh, and Maghar Singh as witnesses and herself went into the witness box.

5. The learned Judge has given in detail the statements of the witnesses produced on either side. After taking into consideration the evidence of the parties, he has come to the conclusion that the appellant desired the respondent to separate himself from his parents but the respondent cannot be compelled to do so. He has further held:

“from the evidence on record I feel that the relations between the parents of the parties of the case have been strained after the election of the year 1957 in which the father of the petitioner was defeated. The result was that the respondent was not now willing to live with the petitioner in his house jointly with his parents.”

6. The learned Judge reiterates:

“The mere fact that the petitioner was not willing to separate himself from the joint family cannot be a reasonable excuse for the respondent in order to a refuse to return to the house of the petitioner.”

7. These are the findings of the learned District Judge. We might straightaway say that the story set up by the respondent in his petition is not at all borne out from his evidence. The brief statement of facts as given by him and as reproduced in the opening part of the judgment of the learned District Judge is not only untrue but is a completely distorted version of the case of the parties. The witnesses produced by the respondent do not at all support the story as put forward in the petition. For this purpose even the brief summary of the evidence recorded by the learned District Judge is sufficient to show that the respondent's case as put by him is false. On the other hand what can be held to be proved in this case is as follows. The parties who had married in 1950 lived amicably as husband and wife till the elections of 1957. During the elections of 1957 the father of the respondent Sunder Singh was opposed by another candidate, a nominee of the National Conference who was supported by the father of the appellant. Sunder Singh lost the election which embittered the relations between the two families and the brunt had to be borne by the poor appellant, the daughter-in-law in the family of Sunder Singh.

8. After the defeat of Sunder Singh in the elections, it is in the evidence on record, that whenaver the appellant went to the house of her father-in-law she was maltreated, abused and her life made impossible by the treatment meted out to her both by her parents-in-law and her husband. The husband was acting under the behests of his mother who appears to be a lady of some harsh temperament. After that the appellant was not allowed to live peacefully in the house of her parents-in-law. Her father tried to take her to a place where her husband was posted, namely, Doda. She remained with him for about three months there, but the mother-in-law on coming to know that her daughter-in-law had gone to her husband, rushed to the place and there persisted in the maltreatment of her daughter-in-law herself and through her son, with the result that the appellant was taken away from that place and sent back to her father's house at R.S Pura, wherefrom she was never allowed to return to her husband. The appellant made a statement in the court that she was prepared to live with her husband. In reply the husband had stated

“she could go to his house; the appellant could go with him from the court but he was not prepared to call her from her father's house. She could of her own accord go to his house. Under these conditions only he was prepared to maintain her.’ He was not prepared to separate from his parents. He was not prepared to keep her with himself at his place of posting.”

9. The lady has made a statement in which she has given details which form part of her written statement. In her statement as a witness she stated unequivocally that she was prepared to live with her husband. She was prepared to go with him even from the Court room if the Court guaranteed her safety. So on and so forth. This story of the appellant is borne out by the statement of her witnesses as well as the statements of the respondent's witnesses and the attendant circumstances. It is in the evidence of the parties that when the respondent did not permit the appellant to live with him the matter was referred to Bakshi Ghulam Mohd the then Prime Minister who brought about a temporary reconciliation between the parties, but later on again the mother-in-law and the respondent did not allow the appellant to live with them.

10. It is rather strange that the court below has not been able to see through the whole game. It was the case of the appellant all through that she was prepared to go with the respondent and live with him as is wife. In the written statement she says so, she made that offer all through while the proceedings were going on in the trial court and she stuck to the same position when she examined herself as a witness. Before us also when we directed the presence of the parties in person, she made this offer without any reserve and without any condition. The respondent dodged the offer on one pretex or the other mainly laying emphasis on the point that he was posted in Doda and his present accommodation was neither sufficient nor suitable for the couple to live in. He would try to find out some alternative accommodation, though the wife was prepared to live with the respondent even where he was residing at the moment. Ultimately the respondent refused to take the appellant with him as he had not got suitable accommodation to lodge her in. This is the factual history of the case. Now we shall examine whether the facts proved in this case do constitute a valid defence to an action for restitution of conjugal rights brought by the respondent against the appellant.

11. Section 9(2) of the Hindu Marriage Act lays down:

“Nothing shall be pleaded in answer to a petition for restitution of conjugal rights which shall not be a ground for judicial separation for or nullity of marriage or for divorce.”

12. The learned District Judge has laid great stress on this sub-section, and according to him none of the facts proved in this case can be a ground for judicial separation leaving aside divorce or nullity of marriage. Section 10 of the same Act gives the grounds on which judicial separation can db claimed by a party. The first ground is desertion of the petitioner by the other party for a continuous period of not less than two years preceding the presentation of the petition. The second ground is the treatment of the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious for the petitioner to live with the other party.

13. If the case of the appellant is covered by either or both these provisions of S. 10, we think she has made a sufficient ground for resisting an action for restitution of conjugal rights. The finding of the trial court on this point is simply that the appellant wants the respondent to live separately from his parents. As he cannot be compelled to do so there is no ground for the appellant to resist the decree for restitution of conjugal rights. In the first place we have to determine whether on the facts proved in this case as discussed above there is any legal cruelty proved on the part of the husband vis a vis the appellant and/or whether there is any desertion on his part vis a vis the wife. In this case it is proved that after 1957 the appellant was not allowed to live a peaceful life in her parents-in-law's house. She was abused, rebuked and maltreated by her parents-in-law and her husband. She was turned out more than once and when she followed her husband to Doda where he was posted her mother-in-law reached that place and managed to send her away to her father's house within a short space of three months and even during those three months the appellant underwent all sorts of mental torture, rebukes, scoldings and taunts and after she was actually turned out of Doda the respondent never claimed her back and allowed her to rot in her father's house. The above facts constitute a clear case of cruelty and desertion by the husband.

14. It is necessary for a grant of a decree for the restitution of conjugal rights that the other party should without reasonable excuse withdraw from the society of the respondent. In this case the wife has not withdrawn from the society of the husband. She has been turned out and sent away though she was and is always willing to remain with her husband and even if she has remained away from her husband it is not without any lawful excuse. The excuse is very well borne out from the evidence on record.

15. The question of cruelty has been the subject-matter of numerous decisions both under the English and the Indian Law. Cruelty need not be physical violence administered by the defaulting party. It may be in the conduct, demeanour and treatment by the defaulting party. What is necessary is that such treatment should raise an apprehension in the mind of the aggrieved party about his physical or mental welfare being adversely affected. These things are sufficient in the eye of law to constitute cruelty even if no physical maltreatment is proved or alleged in a certain case.

16. The following have been held to be sufficient grounds for refusing a decree for restitution of conjugal rights. Where the wife is turned out or ill-treated so as to make it impossible to live with her husband. In Mt. Kurshid Begum v. Abdul Rashid, AIR 1927 Nag 139, which is a case of Muslims—but the principle underlying the decision is equally applicable to Hindus—it has been laid down:

“Even, therefore, if the validity of the marriage be established, the relief of restitution of conjugal rights may be refused on such grounds as that its enforcement would be prejudicial or dangerous to the health, happiness or life of the wife.

Not only a defence of actual violence of such a character as to endanger the wife's health and safety or to render it unsafe for the wife to return to her husband's domain but also of ‘a reasonable apprehension of it’ would among them constitute a valid defence to a suit for restitution of conjugal rights.”

17. In Yamunabai v. Narayan Moreshvar Pendse, ILR 1 Bom 164 it has been laid down that in a suit by a Hindu husband against his wife for the restitution of conjugal rights, the criterion of legal cruelty, justifying the wife's desertion, is the same in this country as in England, viz., whether there has been actual violence of such a character as to endanger personal health or safety, or whether there is the reasonable apprehension of it.

18. In Kondal Rayal Reddiar v. Fanganayaki Animal, ILR 46 Mad 791: (AIR 1924 Mad 49), it has been laid down that under the Indian Law, cruelty in the legal sense need not necessarily be physical violence. A course of conduct which, if persisted in, would undermine the health of the wife, is a sufficient justification for refusing to the husband a decree for restitution of conjugal rights.

19. Similar observations have been made in AIR 1924 Mad 49.

20. In Anis Begum v. Md. Istafa, AIR 1933 All 634, it has been held that when the question is of the husband's cruel treatment towards his wife evidence of a large number of witnesses cannot be expected to be forthcoming, and much will depend on the statement of the wife corroborated by the circumstantial evidence, particularly when the cruelty is alleged to have taken place inside the house of her husband.

21. Therefore it is very patent in this case that the maltreatment of the appellant by her parents-in-law and her husband would, to speak the least, raise a reasonable apprehension in her mind of danger to her health and life. If she is not prepared to go to the house of her parents-in-law, that is a valid ground for her to plead in defence.

22. The second point that arises for determination in this case is whether the appellant can be compelled to go to the house of her parents-in-law or whether she can insist upon the husband to take her with himself wherever he is posted in the course of his service. The learned District Judge seems to have been under the influence of sentiment when he says that the husband cannot be compelled to separate from his parents. He has therefore wrongly drawn the conclusion therefrom that the wife should be compelled to go to the house of her parents-in-law. It would be an irony that the appellant were to be compelled to live in the house of her parents-in-law in the absence of the husband and make herself a constant prey to the ridicule, taunts and maltreatment of her parents-in-law. In England a wife can insist on a decree for restitution of conjugal rights even if she refuses to share the matrimonial home with her mother-in-law and is prepared to resume cohabitation with her husband elsewhere. Vide Munro v. Munro, (1950) 1 All ER 832. The facts of this case have been given in the headnote and are as under:

23. In June 1947, the parties were married and went to live in a flat contained in a villa belonging to the husband's mother in the south of France. The mother was of a dominating personality, and the husband was addicted to drink and was without employment. In March 1948 the wife having failed to reform the-husband and being of the opinion that the mother was having a bad influence on him, left her husband and went to live in London. In May 1948 the husband visited the wife in London, but he refused to resume co-habitation there and suggested that the wife-should return to the villa in France. This the wife was not prepared to do, although she was willing to make a home for the husband provided that it did not involve living with his mother.

24. This is a very sound principle of law and can safely be applied to cases under the Indian society. The appellant here does not insist on the-severance of the joint family of the husband. All that she wants is that the husband should keep her with himself wherever he is posted for the time being in the discharge of his official duties. This is a very innocent prayer and does not by itself mean separation of the husband from the rest of the family. On account of the exigencies of service, as stated by the husband himself, he is posted at different places. It is the right of the wife to insist that she will live with him wherever he be. No law can permit a decree for restitution of conjugal rights against a wife where there wife is not directed to resume cohabitation with her husband, but directed to live with the parents of the husband even if the husband does not reside with them. This to our mind is a strange proposition which has no legal sanction behind it. The decree that can be passed is that the wife do render her-marital obligations towards her husband and not that she should remain as a domestic servant with the parents of the husband.

25. In these circumstances the decree as passed in this case is entirely misconceived and is against the ordinary canons of justice and fairplay.

26. The latest trend in matrimonial cases is that when an action is brought for restitution of conjugal rights the petitioner has to establish a bona fide desire for resumption of cohabitation. The petition must fail if the respondent proves that the petitioner is not sincere in his request and there is some incompatible ulterior object. For this proposition of law see Williams v. Williams, 1921 P. 131, Mann v. Mannr, 1922 P. 238, Rankine v. Rankine, (1922) 38 TLR 852; Parkes v. Parlces, (1923) 40 TLR 42, Palmer v. Palmer, 1923 P. 180; Harnett v. Harnett, (1924) P. 126. See also Halsbury's Laws of England, Vol. 12, 3rd Edn page 285.

27. Applying this test to the present case we are convinced that the petition of the respondent for restitution of conjugal rights is anything but sincere. On the other hand we feel that the defence put forward by the appellant is sincere. Even though the appellant inside the Courts and outside offered to live with the respondent, the respondent on one pretext or the other declined the offer and only insisted that his wife should go and live with his parents. This conduct of the respondent was and is sufficient to disentitle him to a decree for restitution, of conjugal rights.

28. For the reasons given above, we feel that the learned District Judge has committed an error in decreeing the suit of the respondent. We therefore accept this appeal and dismiss the petition of the respondent against the appellant. The respondent will pay an amount of Rs. 200/- as consolidated costs to the appellant.

29. S. Murtaza Fazl Ali, J.:— I agree.

F.I/L.G.C/R.G.D

30. Appeal accepted.