Alka Vilas Joshi vs Vilas Dattatraya Joshi

A.A. Desai, J.—The appellant-wife in this appeal is challenging the decree granted in favour of the respondent-husband for restitution of conjugal right.

The marriage between the parties was solemnised on 16-5-1982. They were residing at Amravati. The appellant is working as a teacher; whereas the respondent original plaintiff is serving as a clerk in N.C.C. On 5-5-1983 the appellant Alka went to her parents perhaps for delivery of a child. On 23-5-1983 she delivered a child. Thereafter on 30-8-1983 she issued a notice to the respondent-husband claiming separate maintenance. She therein made allegations regarding assaults on her by the husband.

The husband respondent on 24-10-1983 filed an application for restitution of conjugal right. According to him, he went to his in-laws place on 16-8-1983 to take his wife-appellant to his house. However, she refused. The appellant-wife resisted the claim for restitution of conjugal right on the ground that the husband-respondent frequently assaults her on the flimsy pretext. The learned trial Court observed that the appellant failed to prove the cruelty and she has withdrawn from the society of the respondent-husband without any reasonable cause. The trial Court decreed the claim. In appeal, the appellate Court confirmed the decree. The appellate Court has observed that "although there is some substance in the claim of the wife about the fact of beating taking place on 1-12-82 and 28-2-83, yet for these reasons, it is not possible to conclude that the husband is guilty of cruelty."

Mr. De, the learned counsel appearing for the appellant-wife, at the outset, criticised the approach of the learned Courts below in not considering the documents viz. Exhs. 32 and 33. According to these documents, Mr. De submitted that the cruelty as experienced by the wife is a writ large. With the assistance of the learned Counsel, I have gone through Exh. 32 dated 22-10-1982. This is a letter written by the father of the respondent-husband to the applicant daughter-in-law. In this entire letter the father-in-law has expressed his concern over the deteriorating health of the appellant. This letter, according to me, has been written with a sense of responsibility as a elderly person of the family. My attention is invited to letter Exh. 33 dated 30-11-1982 This is a letter written by the father of the respondent to the father of the appellant. This letter, in general, refers to the affairs in the house and about the complaint of the Appellant regarding the treatment. It is true from this letter that the state of affairs between the parties are not satisfactory.

Mr. De made a submission that the situation as reflected provides a justification for a wife to withdraw from the company of the husband or in other words, she can refuse to go in the company of the husband and such a withdrawal can be said to be with justification. Mr. De further submitted that for such matter the wife need not strictly prove cruelty meted out by her. Inviting my attention to the decision in the case of Kanna alias Mahalakshmi Ammal Vs. Krishnaswami Achari, Mr. De made a submission that the old and traditional test of expectation, forbearance, patience and tolerance cannot be applied to the facts of modern days. Mr. De, therefore, made a submission that though cruelty has not been proved in a strict sense but the appellate Court has observed that there is some substance and having recorded the finding in this behalf, the Court ought to have rejected the claim of the respondent-husband for restitution of conjugal right.

It is true that as per the ratio laid down by the Madras High Court in the decision cited supra, the old and ancient test cannot be applied. However, the dictum as laid down does not suggest and cannot be construed to mean that the wife can withdraw herself from her matrimonial bondage just on a pretext. I have read along with the learned counsel Exh. 34 dated 1 3 1983, a letter written by the appellant to her father wherein she tried to suggest that the assault and beating by her husband is at the instance or behest or at the instigation of her father-in-law she states otherwise her husband behaves like an ideal husband. The controversy thus revolves round the situation or condition as prevailing in the house where the husband leaves along with his parents, brothers and sisters. The wife-appellant also suggested a device to over-come the situation by having a separate residence. It appears that the entire exercise of the appellant-wife is to get herself separated from the parents of the husband. The situation at the place of her husband may be undesirable. She may not be in a position to fulfil her dreams of a married life but at any rate, the situation as narrated cannot be said to be completely intolerable so as to avail of a justification to withdraw from the society.

Mr. De then invited my attention to the decision reported in Ratnaprabhabai Vs. Sheshrao Shankarrao Bhore, . According to Mr. De the onus lies on the husband-petitioner who claims restitution of conjugal right. According to Mr. De the Respondent has to prove that the wife has withdrawn from his company without any reasonable cause. According to Mr. De the respondent-husband has not discharged his obligation I have gone through the reasoning and finding of the learned trial Court. The respondent-husband has specifically pleaded that when he reached on 16-8-1983 at the residence of his in-laws for taking his wife-appellant, she flatly refused and immediately thereafter within a fortnight, she served a notice on the respondent-husband claiming separate maintenance. The learned trial Judge has examined this aspect in grant details. The learned appellate Court has also examined the aspect of cruelty as narrated by the appellant-wife in her written statement and reached to the conclusion that though there is some substance, cruelty on the part of the husband has not been proved. The instances as narrated by the Appellant cannot be termed as completely intolerable applying the sophisticated test of tolerance and forbearance as laid down by the Madras High Court in the case cited supra. No other ground has been raised. The appeal is without any merit and must fail.

In the result, the appeal is dismissed. The orders of the Courts below are confirmed. There will however, be no order as to costs.