Grover, J.:— This is an appeal against a decree for restitution of conjugal rights granted in a petition filed by the husband under section 9 of the Hindu Marriage Act, 1955.
2. It is not disputed that the marriage between the parties took place in 1953 and the muklawa ceremony was performed in the following year. The parties resided and cohabited together until January 1958. According to the husband, the wife deserted him in January 1958 without any reasonable cause. It was alleged that he went to the house of his father-in-law to bring her back but the wife was not sent on one excuse or the other. Later on, a Panchayat was taken in June, 1958 but the wife's father refused flatly to send her with him. The version of the wife is that in 1958 the financial position of the husband was not satisfactory. He started pressing her to take some training and join service. She passed her Middle School Examination. As the husband was not able to bear her expenses of training, he started pressing her to get the expenses from her own parents. She, therefore, came to her parental home and prevailed upon her father to arrange for training for her in the Diploma Course in tailoring. She joined a school at Hoshiarpur and was successful in obtaining a Diploma in tailoring in the month of April 1959. According to her, even after completing her course she went to the husband and started living with him and even while she was doing her course, she used to visit him off and on. She then joined as a teacher in the tailoring school at village Muradpur Khunkhun at the instance of the husband where she served for about a month. Later on, she got a job with a better salary under the Block Development officer, Una, and was posted at village Rainsari. The husband used to visit her off and on there and used to take major portion of her salary. She even sent a money order of Rs. 40/- to the father of the husband. She asserted that in the month of August 1960 the husband came to see her and Page: 316demanded more money from her but as she expressed her inability to give him anything, he got annoyed and filed the present petition in August 1960. The allegation of desertion was controverted. She stoutly maintained throughout that she had never withdrawn from the society of her husband and had all along behaved like a most dutiful wife and was prepared to allow him to come and stay with her and that she would be prepared to go and stay with him during the holidays.
3. The husband was examined by the trial Court under order X, rule 1 of the Code of Civil Procedure before the issues were framed. He admitted that once in the month of August 1960 he had visited her and had passed one night and had cohibited with her. The Court below then recorded the statement of the father of the husband who admitted that he received a money order of Rs. 40/- from his daughter-in-law. He also admitted that she had visited his village to cast her vote in the Gurdwara elections and she had lived there for about 7 days or so the husband was examined further and he took up the position that he did not want his wife to remain in service and wanted her to come and stay with him and cook his meals and serve his aged parents.
4. The main points which were put into issue and which had to be decided whether the wife had withdrawn from the society of the husband without any reasonable excuse and whether the petition was not bona fide. The Court found, after a consideration of the statements given in the witness-box by the parties as also the other evidence, that, whatever the position was prior to August 1960 when the husband cohabited with the wife during that month, which was admitted, the previous default, if any, on the part of the wife had been condoned and it could be said that up till August 1980 she did not withdraw from his society without any reasonable excuse. The Court below, however, proceeded to say that the husband was justified in asking the wife to live with him even if she had to give up service but as she was not prepared to do so on any condition whatsoever and the conjugal duties could not be performed by living at such a distance, the husband was entitled to the restitution claim.
5. A number of opportunities were given here to the parties to effect a settlement because the wife came to Court personally and stated in categorical terms that she did not want the marriage to break but for one reason or the other no settlement could be effected.
6. The first contention raised on behalf of the appellant who is the wife is that the petition should have been dismissed on the short ground that the husband had founded the same on the allegation of desertion or withdrawal from society in 1958 and it was established that he had condoned the same, even if his allegation were to be accepted, by cohabiting with the wife in August 1960. It is true that the husband did spend one night with the wife in the month of August 1960 which may have had the effect of condoning the previous alleged defaulting conduct of the wife but the difficulty was created by the latter's own statement in Court was as follows:—
“I am not prepared to leave my service at any costs, even if the petitioner deposits Rs. 80/- per month in Court for me. I do not want any gift of any land. I want the marriage to continue, that the petitioner may come to me occasionally and I may visit him occasionally.”
The Court below considered that this would be tantamount to withdrawal from society inasmuch as it is the duty of the wife to live with Page: 317the husband. Mr. Yash Paul Gandhi submits that in the present day pattern of society it is not possible to fit the old notion of a Hindu wife being an appendage to the household of the husband and that it is open now-a-days for either spouse to employ his or her time in gainful employment and if the wife owing to the exigencies of service cannot stay for all the time with the husband, it should not be held that she has withdrawn from his society. It has also been suggested that the financial position of the husband and his family is not at all appellant and that was the reason why the wife was prevailed upon to take the Diploma in tailoring and seek employment. In these circumstances, it is said, the husband has no right to insist that the wife should stay with him all the time and that there would be complete legal justification for the wife to stay where she is actually forced to reside owing to exigencies of service. My attention has been invited to the observations made in Kay v. Kay (1904) P. 382 at pp. 389, 390 that cohabitation does not necessarily mean that the parties are living together under the same roof, but that there may be states of cohabitation where they see as much of each other as they can, and yet are not started. For instance, a man may be cohabiting with his wife even if he is away on a visit or on business; because the conjugal relationship is not determined in any shape or form thereby. In G. v. G (1930) P. 72, it has been held that a husband is not to be taken as having deserted his wife without reasonable cause because his work in life compels him to live away from her. Mr. Gandhi submits that under the Hindu Marriage Act there is no distinction between the position of the husband and the Wife in this respect and the same principle should be applied to the present case and merely because the work of the wife compels her to live away from her husband, it cannot be said that she has deserted him or has withdrawn from his society without reasonable cause. It has been found under issue No. 1 by the Court below that the husband has produced entries from revenue records (Exhibit P. 1) showing that his father owns about 100 kanals of land. Admittedly the respondent is the only son of his father. Actually his father, who appeared as a witness, stated that he was even prepared to gift one-third share in his entire land to the present appellant in case she were to leave the service and start living with his son. It cannot, therefore, be said that the financial condition of the husband or his family is such that he is in any way defendant on the income of his wife.
7. In Mulla's Hindu Law it is stated in paragraph 555 that a wife's first duty to her husband is to submit herself obediently to his authority, and to remain under his roof and protection. She is not, therefore, entitled to separate residence or maintenance, unless she proves that, by reason of his misconduct or by his refusal to maintain her in his own place of residence or for other justifying cause, she is compelled to live apart from him. It is not possible to accede to the contention of Mr. Gandhi that the husband in the present case should content himself by visiting his wife whenever he wishes to live with her or cohabit with her or by her coming to live with him occasionally. There can be no bar to such an arrangement being made by mutual consent and concurrence of the parties but I have not been shown any rule or principle in law which would justify the Court holding that the wife can be allowed to virtually withdraw hereself from the society of the husband in this manner. I would consequently dismiss this appeal but in the circumstances leave the parties to bear their own costs.
Appeal dismissed.