Katju, J.:— Sri Ramesh Chandra Nigam had instituted the suit in appeal for restitution of conjugal rights against his wife Smt. Shanti Nigam under Sec. 9 of the Hindu Marriage Act. The court below decreed the suit and being aggrieved from its decision Smt. Shanti Nigam has come in appeal before me.
2. The parties were married at Allahabad on the 16th of February, 1951. The appellant was at that time working as the Vice-Principal of the Dwarka Prasad Girls Intermediate College, Allahabad on a salary of Rs. 250/- per month. The respondent Ramesh Chandra Nigam was also posted at Allahabad as a Judicial Magistrate at the relevant time. He was a widower, his first wife having died in October, 1949 leaving two children—a daughter Shashi and a son Sharad. The deceased wife was also working as a teacher in the Anne Basant School at Allahabad. The parties lived together at Allahabad till July, 1953 when the respondent was transferred from Allahabad to Varanasi. He remained in Varanasi upto July, 1956 when he was transferred from Varanasi to Kanpur and then he was transferred from Kanpur to Lucknow in 1969. The appellant Shanti Nigam was living with her parents in a house No. 3. West Khusro Bagh Road, Allahabad before her marriage. The respondent had a house at Beli Road, Allahabad where Shanti lived with him after their marriage. Then he shifted to another house at Beli Road where the couple continued to live till July, 1953 when the respondent was transferred from Allahabad to Varanasi. Thereafter the appellant came back to her parent's at West Khusuro Bagh Road and has been living there ever since. Both the parties have been working in their respective services. The appellant is now a lecturer in the Chowdhary Mahadeo Prasad Decree College, Allahabad and is drawing a salary of Rs. 650/- p.m The respondent is at present posted as Additional District Magistrate (Judicial) at Sitapur and is drawing a salary of about Rs. 1,000/- p.m Two children were born to Shanti Nigam; a daughter Ismita alias Lali on the 14th of February, 1952 and a son Rajesh in May, 1965. Both the parties started their married lives with hopes of happiness and they lived together as such till 1957. Dark clouds had started together even sometime prior to 1957 and they started casting shadows in their lives and there was a positive break between them in 1957. Things continued to drift till May, 1960 when the respondent who was then posted at Lucknow came to Allahabad and took back his wife along with him to Lucknow. They reached there on the 28th of May but evidently their living together at Lucknow did not improve matters. Shanti left Lucknow for Allahabad on the afternoon of 31st May and on the next day the respondent sent a notice to her asking her to resign her job and return back to him at Lucknow and stay with him. In case of failure on her part to do so he threatened to sue her “for restitution of conjugal rights” or for seeking judicial separation from her. She did not pay any heed to the warning contained in the aforesaid notice and the suit in appeal was instituted on 13-3-1961. The relief prayed for in the suit was for “a decree for restitution of conjugal rights” in favour of the respondent against the appellant and it was further prayed that the appellant “be ordered to come and live with the petitioner and perform her marital duties.”
3. The evidence in the case consists of the statements of the parties and a number of letters which were written by the wife to the husband and by the husband to the wife along with some letters which were addressed by the parties to the sister, brother and the mother of Shanti.
4. The court below on a consideration of the evidence adduced before it found that, firstly, “the petitioner has done nothing which can amount to cruelty within the meaning of law and which could give rise to a reasonable apprehension in the mind of the respondent that it would be harmful or injurious for her if she goes and lives with him”; secondly, “the respondent had made up her mind as far back as in May, 1957 that she would not live with the petitioner as a wife and would not discharge marital obligations.” She only wanted that the husband and wife should in the interest of the children put up an “outward show that they were husband and wife and nothing beyond that”. The wife had kept herself away from the society of the petitioner and no blame can be attached to the husband; thirdly, the plea of the wife that if she was compelled to resign her job it would be “violative of the provisions of Article 19 of the Constitution” had no substance. The appellant had voluntarily undertaken to live with the respondent and perform her marital obligations and a decree for restitution of conjugal rights could not be said to be violative of the provisions of Article 19 of the Constitution. On the aforesaid findings the learned Civil and Sessions Judge allowed the petition and directed that the “respondent should go and live with the petitioner and in case the petitioner does not treat her well she will be furnished with the ground for with drawing herself from the Society of the petitioner. It appears that she had no reason for not going to the petitioner and not discharging the marital obligations.”
5. It was alleged by the respondent that while the negotiations for his marriage with the appellant were going on he had insisted that when he was transferred from Allahabad, his wife shall resign and will go him to the place of his assignment. He alleged that he had insisted on the appellant to resign when he was transferred from Allahabad to Varanasi and she refused to do so on one pretext or the other. He had to live a lonely life at Varanasi, Kanpur and Lucknow and when there was persistent refusal on the part of the appellant to resign her job and stay with him permanently then he was compelled to institute the suit in appeal.
6. It appears from a perusal of the letters which passed between the parties and which they wrote to the other members of the appellant's family that the appellant had hopes and expectations of happiness in her life when she entered into matrimony with the respondent in 1951. Her letters clearly show her mood and the love which she had towards the respondent in the early years of her married life. There were, however, strains in their conjugal lives from the very start. The respondent was a widower. He had lost his wife two years earlier and had two children by her first wife. He did not evidently have that feeling of romantic exuberance and joy with which the appellant started her married life. But she too had to face difficulties and disappointments from the very start of her married life. The responsibility of nursing her two steps children fell on her when she wanted to give her undivided attention to her husband. She seemed to be quite conscious of her duties and her letters show that in spite of the strains caused on her as a result of looking after her step children she did not shirk her responsibilities. Occasionally she gave expression to her disappointments when she found that the presence of children came in the way when sometimes she wanted to be alone with her husband. Although the relations between the parties apparently continued to be happy as long as the respondent stayed at Allahabad there is a painful reference to the period when she stayed at Allahabad with her husband at the Beli Road house in a letter which shows that even when she was alone with him in his house at Allahabad she sometimes felt the pangs of grief and sorrow. Troubles seem to have started when the respondent left Allahabad for Varanasi. He used to come occasionally to Allahabad and stay with his wife in the house of her father at Khusro Bagh Road. The wife also occasionally visited Varanasi. The letters from the wife to the husband show the warmth and exuberance of affection which she had for the respondent. She often scolded for his coolness, delay in writing letters to him and in not being sufficiently attentive to her on certain occasions. The letters written by the husband to his wife during the period when he was at Varanasi have not been produced in evidence. It is only in her letters to the respondent that Shanti gave vent to her feelings of disappointments on the coolness and lack of warmth shown by the respondent towards her on certain occasions. Sometimes when the respondent came to Allahabad on short visits the appellant felt that he was not sufficiently attentive to her and on one occasion when she expected that she would remain with him for the night she felt hurt when he, ignoring her, preferred to pass the night in the company of his two children by the first wife.
7. Then came the first child of the appellant Ismita alias Lali and naturally her responsibilities increased. She felt sore and often gave vent to her feelings in her letters to the respondent that the latter did not care much for Lali and paid more attention to the two children by the first wife. She was doing her best for Shashi who stayed with her. The latter was growing into an unruly child. The respondent had asked the appellant to thrash Shashi when necessary. In reply she wrote to the respondent saying that it was not possible for her to do so. She gave expression to the difficulties experienced by a step mother. She had to discharge her duties towards the children of her husband but she lacked the privilege of chastising the child which a natural mother has and naturally this often produced undesirable effect on the child. In more than one letter she wrote what she had done for Shashi and the difficulties she had to experience while dealing with her. What hurt her most was, according to her, the apparent callousness of the respondent towards Lali and she refers to this subject in several letters addressed to the respondent. In one letter she went to the extent of saying that it appeared that the respondent did not like having been burdened by a second daughter and, therefore, he had no liking for Lali. In spite of occasional jarring notes referred to in her letters the married life of the parties continued its course when her second child Rajesh was born in 1955. That added to the appellant's domestic responsibilities. Sharad had been sent to Kanpur where he was being looked after by the brother of the respondent and the brother's wife. But Shashi continued to live with the appellant till 1954.
8. The family member of the appellant lived in the Khusro Bagh House. Her father had died in 1952. The other members of the family in the house were the appellant's mother called Amma who died in 1964, her two sisters Bharti and Malti alias Patti, and brothers Prabhu Payal Saxena alias Lallu and Ramesh Kumar Saxena alias Rai Saheb. Bharti has not married and she is at present the Principal of the Prayag Balika Vidyalaya. Malti is married and she lives with her husband who is a lecturer in the Allahabad Arya Kanya Pathashala. Her two brothers and their wives and children, her sister Bharti and her mother have continued to live in the Khusro Bagh House. The respondent had to stay with the appellant in a crowded house on his visits to Allahabad when he was at Varanasi and lack of privacy occasionally irritated the appellant.
9. The evidence is vague on the question of financial arrangements between the parties. There is reference in the letters which passed between the parties that the respondent occasionally brought things to Allahabad from Varanasi and Kanpur and while at Allahabad he sometimes made purchases for his wife. There is however no evidence to indicate that the respondent gave any fixed monthly allowance to the wife for her expenses and that of her children. It was admitted on behalf of the respondent that no regular monthly allowance was paid to the appellant by the respondent. As mentioned above, the respondent himself was drawing a salary between Rs. 300 to Rs. 400 while he was posted at Allahabad and Varanasi. He had to run the establishments at Varanasi and subsequently at Kanpur and considering the rising prices it is not difficult to imagine that both the appellant and the respondent who were earning members were under financial strain. In some of her letters sent by the appellant to the respondent she said that she was maintaining herself and her children with great difficulty.
10. So the parties continued to pull on till a warning signal as given by her in her letter dated 13-5-1956 (Ext. 19) addressed to the respondent in which she hinted that she had developed a dislike for physical intimacy with him. They continued to drift on together, even though harmony between the parties had been disturbed, till 21-5-1957 when in her letters addressed to the respondent Shanti wrote that there was no feeling left between them. What precisely happened between the parties which led to the break of the harmonious relations with which they had started their married life is difficult to understand. There were occasional jarring notes in their conjugal lives but they by themselves were not uncommon and they do happen between a husband and wife. Both of them are well educated. Neither of them has made any accusation of infidelity or deviation from the path of fidelity against another. There is not the faintest suggestion of immorality by the husband against the wife or by the latter against the former and yet, probably, there was some unseen force which cast its shadows and creeping slowly disrupted the harmoney between them and ultimately brought them to a point where they stood completely pulled apart from each other.
11. Before I proceed further it is necessary to consider whether there was a prior agreement between the parties before marriage that the wife would resign her job and accompany the husband when he was transferred from Allahabad. The respondent stated that there was such an agreement between him and his father-in-law when the marriage was settled between him and the appellant. According to him, it was made clear by him that his wife will resign her job and accompany him to the place where he was to go after transfer from Allahabad. This has been denied by the appellant. The respondent was transferred from Allahabad to Varanasi in July, 1953. The letters which passed between the parties after their marriage in February, 1951 upto July, 1953, vix. Exts. 1, 2, 3 and 27, were written by the appellant to the respondent when the latter was at Allahabad either from her maternal home at 3 West Khusro Bagh Road or even while she was staying with her husband at Beli Road. There is no reference in any of the aforesaid letters about the appellant resigning her job. The first reference to the subject is in letter Ex. 9 dated 9/152.54. The letter of the husband, in the context of which the aforesaid letter (Ex. 9) was written, is not on the record. The appellant said in the aforesaid letter:
“14th Evening—I could not write even yesterday. Well, there was a talk about my service. At present for the sake of the economy of the house, it is essential to let it continue. Even if it is not so, I want to remain in service for the time being. Suppose if you get prejudiced against me at any time, and start thinking otherwise) then in that case I do not want you to think that I was selfish and that in fact I wanted from you something other than love and affection. I only wanted your love and care, attention and affection and nothing else, not money. And thus you will at least trust my sincerity. Hence, in spite of such difficulties I want to continue my service.”
12. It may be that she had merely expressed her desire to continue in service for the reasons mentioned by her. It is not quite clear whether the respondent had asked her to resign and it was in reply that she had expressed the aforesaid opinion or it was merely an expression of her own view on the subject. It cannot be said that the husband had expressly asked the wife to resign the job and she had refused to do so. There is no further reference to the topic in the subsequent letters which passed between the parties. On the other hand the letter (Ex. B) dated 31-1-1955 written by the respondent to Shanti shows that he had encouraged her in her attempt to get selected to a post in the University of Allahabad. He wrote:—
“My dear, you have not written anything about your selection in the University. I am very anxious to know what will happen. However I feel confident that you will be appointed there and you will also complete your research there. I am sure you will complete your research this time when you become free after the delivery of Munna Ji.”
13. In his next letter dated 4-5-1956 (Ex. C) the respondent wrote to the appellant:—
“……The recruitment notice for I.A.S has been published today. There is one condition in it that one must be drawing Rs. 300/- at the place where he has been serving for the last one year. Therefore you cannot apply for it….” There is no suggestion in the aforesaid letters that the respondent in 1955 had asked the appellant to resign her job at Allahabad. It was only in the notice given by the respondent to the appellant (Ex. H) dated 1-6-1960 that he insisted that she should resign her job and join him at Lucknow. It cannot be denied that the continued separation between the husband and wife must have caused considerable strain on them and they would have thought of living together. It however seems that considering the economic circumstances of the couple the respondent did not insist on the appellant leaving her job and live with him permanently either at Varanasi, Kanpur or Lucknow where he had been posted after his transfer from Allahabad.
14. It appears that the respondent had fallen ill in about 1960. According to the appellant, she would have gone to see him in a hospital at Kanpur where he had been admitted but she was informed by her uncle who had met the respondent that the latter was nursing bitter feelings against her. She stated:—
“……next day my uncle Dr. Parmatma Prasad Sinha came to me and he said that he had been to Kanpur and that he say my husband in the Hospital. He said that my husband was extremely angry and he was saying that he would defame me in the bir-adari and would snatch the children and would involve me to resign. He would not care whether I lived or died or (?) afterwards. I was tarnor stricken and I did not have the courage to go to Kanpur.”
15. Thereafter the respondent having been discharged from the hospital came to Allahabad in the last week of May, 1960. According to the appellant, he wanted to be forgiven for all that he had done to the appellant and he dictated notes (Exs. 22 and Ex. G) Ex. 22 is a draft which was alleged to have been written by Bharti at the dictation of the respondent. It bears some corrections made by the respondent. Ex. G is the fair copy of the draft. It bears the signature of the respondent. It is a note in the form of a letter addressed by the respondent to his mother-in-law. It says:
“…. I only request you to forget old episodes and send Shanti to Lucknow with me. I fully assure you that Shanti will not be maltreated now in any way. I shall keep Shanti and her children with care as this is, after all, my duty. I admit that if Shanti wants it, she can take Rs. 200/- as maintenance allowance at any time provided she needs that money. Please forget all past things and send Shanti. You should know that Shanti and Chandresh live with their Tau and they shall never be the cause of any difference between us. I fully assure you about this much. At present, there is no question for Shanti to leave the service.
Your son,
Sd/- Ramesh Chandra.
16. The respondent has stated that he was forced by his wife and mother-in-law to put his signature on the aforesaid note and that he had not done so voluntarily. It is difficult to understand that a man in the position of the respondent being coerced by his wife, her sister or mother in signing the aforesaid note. It may be that the respondent was under a mental strain and he was anxious to take back his wife to Lucknow and therefore, he signed the aforesaid note. The appellant stated that she had an appointment with the authorities of the Allahabad University on the 2nd of June 1960 and while she had expressed her willingness to go with the husband to Lucknow she wanted to go to Lucknow after the 2nd of June. But the respondent insisted that she must go with him to Lucknow on the 28th of May and she could return back to Allahabad in time for the interview on the 2nd of June, 1960. She did go there and remained with her husband for three days and then returned back to Allahabad. She was seen off by the husband at the Lucknow railway station and one of his peons had accompanied her to Allahabad. According to the respondent she left Lucknow on 31-5-1960 against his wishes. He further stated that “no marital act was performed dining her stay at Lucknow”. The wife was, as stated by her, shocked, to receive the respondent's notice addressed to her (Ex. H) dated 1-6-1960. It is indeed surprising that soon, after the appellant left Lucknow on 31-5-1960 the respondent took immediate steps to send her a legal notice on the following day viz. 1-6-1960. It was strenuously contended by learned counsel for the appellant that the insistence of the respondent to take the appellant with him to Lucknow was merely a sham attempt on his part to bring back wife before he instituted the present suit for restitution of conjugal rights. He relied on Smt. Rebarani v. Ashit A.I.R 1965 Cal. 162.. It was observed in the aforesaid case that
“In these circumstances it is difficult to accept the husband's uncorroborated testimony on the above points, and, if that evidence be not accepted or accepted as sufficient to prove that the husband made attempts to bring back the wife, his case that the wife was staying away without reasonable cause, which it is incumbent upon him to prove under sub-sec. (1) of Sec. 9 would fail.”
17. I need not go further into the question whether the respondent had brought the appellant to Lucknow in order to strengthen his suit for restitution of conjugal rights or it was a genuine attempt on his part to seek the society of the appellant.
18. It is necessary to consider whether the respondent is entitled to relief under Sec. 9 of the Hindu Marriage Act (hereinafter referred to as the Act). The provisions of Sec. 9 of the Act run thus:—
“Sec. 9(1) when either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.
(2) Nothing shall be pleaded in answer to a petition for restitution of conjugal rights which shall not be a ground for judicial separation or for nullity of marriage or for divorce.”
19. It is necessary for the petitioner to show under Sec. 9(1) of the Act that the appellant had withdrawn herself from the society of her husband without reasonable excuse and further that no legal ground had been made out as to why the relief for restitution of conjugal rights should not be granted. It is for the petitioner to prove that the withdrawal from the society by the wife was without reasonable excuse. The defendant in the suit may plead any legal ground to show that the application should not be granted. In Rebarani v. Ashit it was observed:—
“The matter had primarily to be decided under Sec. 9 of the Hindu Marriage Act. That section contains two sub-secs. (1) and (2). Sub-sec. (1) contains particulars of the duties and obligations, which have to be discharged by the husband to enable the court to take a view in his favour. Sub-sec. (2) deals with the wife's defences to the husband's action, if it was otherwise entitled to succeed under sub-sec. (1). The learned trial Judge appears to have concentrated his attention on sub-sec. (2) and dealt with the case by throwing the entire onus upon the wife respondent.”
20. The scope of Sec. 9 of the Act was considered by Hon'ble Mithan Lal, J. in Smt. Mango v. Prem Chand A.I.R 1962 All. 447. and by Gangeshwar Prasad, J. in Jagdish Lal v. Smt. Shyama A.I.R 1966 Alld. 150. Gangeshwar Prasad, J. observed:
“The view taken in all these cases may be said to be that the words ‘reasonable excuse’ in sub-Sec. (1) include a ground in addition to the grounds mentioned in sub-Sec. (2). In fact, Dixit, C.J who delivered the judgment of the Division Bench in Smt. Alopbai's case A.I.R 1962 M.P 211. went further and said that even when the conditions mentioned in sub-Sec. (1) are satisfied it is in the discretion of the Court whether or not to pass a decree for restitution of conjugal rights. His Lordship also emphasized the fact that the discretion given in passing a decree for restitution of conjugal rights has to be exercised very cautiously and after deliberation, because after all, it is a very serious matter to pass a decree for restitution of conjugal rights and enforce a party to return to his or her conjugal home against the party's will.”
21. Whether Smt. Shanti Nigam had a reasonable excuse in withdrawing herself from the society of the respondent or not is to be determined in the light of surrounding circumstance. When a wife feels that she cannot possibly stay with her husband and is compelled to live away from him the Court has to see whether the excuse of the wife is reasonable. In doing so it should appreciate her view point in a manner similar to what it does while interpreting a will when it tries to sit in the armchair of the testator. Similarly in a matter like this the Court has to put itself into the position of the wife or the husband or both and then see whether the attitude adopted by the wife or the husband is unreasonable. If either of them finds himself or herself so hopelessly torn away from the other, and it is felt that their living together is not possible, then the Court has only to see whether the excuse set out is no unreasonable that it must be rejected outright. In the absence of obvious and patent unreasonability, the parties should be left to their own judgment. It is not necessary that what may appeal to one's reason may also appear to be so to another person. A scientific or a mathematical truth could be demonstrated only one way and not in any other. But in matters where opinions, likes and dislikes, grievances, lack of sympathy and many other factors may be interwoven in a confusing pattern the Court will not like to impose its judgment on the reasonability or other wise of a particular situation unless there are unimpeachable reasons to warrant the adoption of such a course. As mentioned above, both the parties in this case entered into wedlock with great expectations of a happy conjugal life but diverse circumstances of which they were themselves victims eventually threw them apart. In 1957 the appellant thought that it was not possible for her to live with the respondent as his wife and an alternative suggested by her was that they should occasionally live with each other only in the interest of their children and for putting up appearances. As mentioned above, what exactly was the cause which led to the disruption of their married life is difficult to ascertain. Undoubtedly there were financial troubles and added to it was the strain caused by separation for long intervals, the burden on the appellant of looking after her own and her step children and her feeling which grew in intensity with the passage of time that her husband had only married her for looking after his children by his late wife and that he did not care for her and for her own children. The cumulative result of all the aforsaid circumstances was that ill will kept on sinking deeper and deeper to their lives and ultimately parted them away from each other.
22. The concept of cruelty has undergone considerable change and it now includes not only infliction of physical injury but also mental and psychological injury. It was observed by Roy, J. in Smt. Pancho v. Ram Prasad A.I.R 1956 All. 41.:
“Conception of legal cruelty undergoes changes according to the changes and advancement of social concept and standards of living……………….
Moreover, to establish legal cruelty it is not necessary that physical violence should be used. Continuous ill-freatment, cessation of marital intercourse, studied neglect, indifference on the part of the husband and an assertion on the part of the husband that the wife is unchaste are all factors which may undermine the health of a wife. In such cases it would not be unreasonable to hold that the wife may legitimately apprehend that if she goes to her husband there will be a repetition of such conduct which may result in a complete breakdown of her health.”
23. In Kusum Lata v. Kampta Prasad A.I.R 1965 All 280. M.H Beg, J. observed:—
“Although the merely fanciful notions of a petitioner cannot constitute cruelty in the eye of law, yet, if the allegations of cruelty can be supported by a reasonable apprehension on the part of a particular petitioner that it will be harmful or injurious to that petitioner to live with the other party, the case will be made out. In judging the subjective appraisal of a situation and the apprehensions in the mind of a petitioner, the court will necessarily be, guided by objective facts proved to its satisfaction. It is however, quite clear that the reasonable apprehension in the mind of the petitioner need not be merely of physical injury. A reasonable apprehension of psychological injury or harm to the petitioner is enough for granting a decree for judicial separation.”
24. In considering whether the wife in the present case had reasonable excuse in refusing to live with the husband, the Court has to see whether it is established from the proved facts that she was justified in refusing to live with him. As mentioned above, none of the parties has accused the other of infidelity or indulging in any immoral act. The personal character of both the parties is above reproach. The appellant's children were living with her and were brought up by her. She had been meeting her expenses as also the expenses of her son and daughter. It is no joy for a woman to live away from her husband and particularly from one for whom she had such intense feeling of devotion as is clearly shown in the letters which she wrote to the respondent right upto 1957. But the compelling force of circumstances slowly and steadily dried up all the warmth of love that she had for the husband. According to her, she had good grounds for keeping herself away from her husband. She says that the husband became curse towards her soon after their marriage and a feeling persisted in her that he did not care for, her children and her step children came in the way between her and her husband. She was convinced that her husband had only married her for looking after the children from his late wife and that she was never given that place in the heart of her husband to which she was entitled as a wife. In view of the cumulative effect of the aforesaid circumstances on the mind of the appellant I am not prepared to say that she had no reasonable excuse to stay away from her husband.
25. The appellant while she was at Kanpur with her husband wrote a letter to her sister Bharti on 13-6-57 (Ex. 20). In this letter she made somewhat sarcastic remarks about her husband and her two step children. But it was a letter addressed to her sister and much of what was written was in a light and causal way. Unfortunately this letter was intercepted by the husband and apparently he took a very serious view of its contents. There is no doubt that the parties had lost their sense of humour and laughter and had no capacity left to enjoy jokes at their own expense. The fact of interception of the letter by itself clearly indicates that the respondent had ceased to trust his wife. When a husband does not trust his wife he saps the foundation of matrimonial relationship. In Sadhu Singh… v. Shmt. Jagdish Kaur…. A.I.R 1969 Punj. 139. certain letters written by the wife to a lady friend were intercepted by the husband. It was observed:
“Before I pass on to consider these letters, it is important to bear in mind that these letters were intercepted by the appellant. It will not be out of place to mention here that the stability of a marriage rests on three pillars, namely mutual trust, bilaterial respect and sympathetic understanding. Out of these three, which sustain a matrimonial home, ‘trust’ is by far the most important prop. “To be trusted” says George Mac Donald, “is a greater compliment than to be loved”. Trust begets trust; suspicion breeds suspicion. The interception of these letters by the needlessly suspicious husband constituted an act of vendalism against “trust”, undermining the very foundation of the matrimonial relations. This is an important factor, which affect the Court in its approach towards the appellant's case.”
26. I respectfully agree with the aforesaid observations.
27. Lastly, I have to consider an important aspect of the case. In Tirath Kuar v. Kripal Singh A.I.R 1964 Pun. 28., the wife had accepted a job and had refused to resign it. Grover, J. observed:—
“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 she 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 the concurrence of the parties but I have not been shown any rule or principle in law which justify the Court holding that the wife can be allowed to virtually withdraw herself from the society of the husband………”
28. Can it be said that if for some justifying cause a wife is compelled to live periodically apart from her husband it would amount to her virtual withdrawal from the society of her husband?
29. The parties before me are governed by the Banaras School of Hindu Law for which the authoritative commentaries are “Nirnaya Sindhu” and “Vir Mitrodaya”. Nirnaya Sindhu while commenting on the text of the smriti of Yajnavalkya dealing with the duties of husband and wife after marriage refers to the Manu Smriti. Manu says:—
Chap. I 56. Where women are honoured there the gods are pleased; but where they are not honoured no sacred rite yields rewards.
57. Where the female relations live in grief the family soon wholly perishes; but that family where they are not unhappy ever prospers.
Chapt. V. 147. By a girl, by a young woman, or even by an aged one, nothing must be done independently even in her own house.
148. In childhood a female must be subject to her father, in youth to her husband, when her lord is dead to her sons; a woman must never be independent.
149. She must not seek to separate herself from her father, husband, or sons; by leaving them she would make both (her son and her husband's) families contemptible.
Chap. IX. 75. If the husband went on a journey after providing (for her), the wife shall subject herself to restrains in her daily life; but if he departed without providing (for her) she may subsist by blameless manual work.
101. Let mutual fidelity continue until death; this may be considered as the summary of the highest law for husband and wife.
Manu has further said:
30. The Veda, the Smriti, the approved usage and what is agreeable to one's soul (or good conscience) the wise have declared to be the guardruple direct evidence of Dharma. Chap. 11, 12.
31. Apart from the directory character of some of the aforesaid rules a wife after her marriage is enjoined to be dutiful towards her husband, remain faithful to him, extend the family line by procreation and remain under the protection of the husband in his house. The injunction with regard to remaining under the protection of the husband and living in his house is part of the duties of a wife towards the husband. A woman because of the limitations imposed on her by her sex needs the protection of a father, husband or son in her life. But the concepts of protection of the husband and unbroken residence in his house are not inelastic and rigid rules which cannot be interpreted in the context of present day conditions and needs of society. Women are now no longer confined within the walls of their houses. In view of the altered social and economic conditions both husband and wife may think it necessary to work and contribute to the family chest. There might be cases where on account of family circumstances a woman might have to live by herself while the husband is working at a place where he cannot take his wife along with him. Again, a wife may be the bread winner of the family, the husband being infirm or out of employment. If under such compelling circumstances a wife has to live away from her husband then it could be said that the husband and the wife have two homes; one where the husband lives and the other where the wife temporarily resides. Such a situation would not be said to run counter to the spirit of the Hindu Law. A wife after her marriage becomes part of the husband or as the Shastra says, becomes his ARDHAN GANI (half body). Her own establishment may be a family home in which the access of the husband is not denied by her and where he could come at his pleasure and convenience. In such a situation it cannot be said that she has withdrawn herself from the society of her husband. It is one thing for a wife to say that she will not go to her husband and will not cohabit with her nor will she allow him to come to her. It is different if she says that it is necessary for the upkeep of the family that she should also work and she would go to her husband whenever it is possible for her to do so and the husband could also come to her at his own convenience. Can a husband insist on his wife resigning her job? It sometimes happens that a husband has to live away from his wife due to force of circumstances for long, intervals and he only comes to her for a month or two in an year. It will be unreasonable for the wife to say that under these circumstances he should resign his job otherwise she will leave him. Similarly in the context of present day economic stress a wife may genuinely think that for the sake of the family and her children it is necessary for her to work. The question is whose voice should be decisive, whether that of the husband or of the wife? In my opinion where a wife feels that it is necessary for her own upkeep and the bringing up of her children that she should work, the decisive voice must be her own and if there is disagreement on the point between her and the husband the latter cannot compel her to take a different line. While she is working she can always go to her husband in varying frequences depending on circumstances and the husband can go to her as often as he likes. If there is no refusal on the part of the wife to allow access to the husband and no reluctance on her part in going to her husband, then in such a case it cannot be said that the mere refusal on her pan to resign her job is sufficient ground for the husband to seek relief for restitution of conjugal rights. So long as the wife does not cut herself off from her husband in the sense that she does not go to her husband and refuses him his marital rights or refuses to allow him to live with her at her own place, the mere fact that she is herself working, even contrary to the wishes of the husband, will not furnish a ground for a decree for restitution of conjugal rights.
32. I do not agree with the finding of the court below that the appellant had no reasonable excuse to keep away from her husband and the latter was therefore entitled to a decree for restitution of conjugal rights.
33. Considering the circumstances of the present case I am not prepared to compel the wife to resign her job and to live with the husband if she does not wish to do so. While granting a decree for restitution of conjugal rights I have not only to take the circumstances of the case when the suit was instituted or when it was decided by the court below but have also to keep in view the subsequent events. The suit was filed in 1961 and the decree of the court below was passed on 12-2-62. It is indeed unfortunate that it has taken more than eight years for the appeal to come to me. Such long delay particularly in matrimonial cases is extremely regretable, because in such cases the time factor is of vital importance. The appellant was about 31 when she was married in 1951 while the respondent who is about two years younger to her, was about 29. Now both of them are on the wrong side of fifty. The very fact of the institution of the suit by the respondent against the appellant which necessitated the exposure in court of various incidents of her conjugal life must have caused great pain and sorrow to the appellant. Apart from other circumstances, the long drawn-out litigation between the parties has also to be taken into account. It must have added to the bitterness of the parties. It is not possible for me to compel the appellant, against her wishes, to resign her job and seek the society of the respondent. That is a matter which primarily rests on them alone. On a consideration of the evidence on the record and the facts as I find them, I have to dismiss the respondent's petition. But it is still open to them to undo what has been done either by themselves or by circumstances beyond their control. It is indeed a pity that both of them have suffered cruelly by those frolics in which fate often delights. It is my fervent wish and hope that gods will now be merciful and will give them happiness. For them the Sun has not reached its meridian and is still high. It may yet dispel the darkness and gloom in their lives.
34. I allow the appeal, set aside the decree of the court below and dismiss the petition. The parties will bear their own costs in this Court.
Appeal allowed.
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