Kaka Ram vs Satya Wati

R.P. Khosla, J.—This is a petition for revision at the instance of the husband.

The marriage between the parties was solemnised on 1st September, 1958, but the couple on differences arising led an unhappy married life. On 11th August, 1950 finally the wife petitioned for being allowed separate maintenance allowance on the ground of desertion and neglect by the husband. On 24th July, 1931. Magistrate Ist Class, Ludhiana, while acceding to her petition granted her Rs. 35/- as monthly allowance.

On 30th August, 1931 the husband sued out for restitution of conjugal rights and obtained a decree on 7th June, 1932. Meanwhile the. husband had also challenged the maintenance order before Sessions Judge but remained unsuccessful.

The wife on 16th July, 1932 by way of First Appeal from order No. 80-M of 1962 questioned the correctness of the decision in husband''s suit for restitution of conjugal rights.

During the pendency of the said First Appeal from order the husband moved a petition u/s 489(2) of the Code of Criminal Procedure seeking cancellation of the maintenance order but was nonsuited on 27th September, 1932. But before the revision against the said order reached decision in the Sessions Court the parties entered into a compromise in First Appeal from order 80-M of 1932. Subject to the terms of the said compromise the decree for restitution of conjugal rights stood modified since the compromise arrived at would have an important bearing on the decision of the instant petition the relevant terms are set out below.-

Statement of Kaka Ram respondent (husband) on S. A.:

I will rent a separate house for the residence of my wife, the appellant, at Ludaiana in the beginning, and will also bring her myself from her village. I will have no objection to the appellant''s mother visiting as and occasionally staying with us. The decree for restitution of the conjugal rights granted in my favour should be subject to the above conditions. Till I arrange a separate residence for my wife I will be responsible to pay maintenance allowance to her at the rate granted by the Criminal Court. I should be able to arrange a separate house within a month from to day.

Statement of the appellant (wife) on S. A. :

I have heard the statement of my husband given in the Court today. I agree with it.

As already observed the said compromise had been entered into during the pendency of the revision petition directed against the order of Magistrate in petition by the husband u/s 489(2) of the Criminal Procedure Code. The parties therefore took to its implementation. The learned Additional Sessions Judge on the findings that the husband had failed to prove that he had fulfilled the terms of the compromise and that there had been no change of circumstances finally on 4th of November, 1963 dismissed the said revision petition.

The instant petition is directed against the said order dated 4th of November, 1963 of the learned Additional Sessions Judge. The challenge is that the petitioning husband had carried out the terms of the compromise to the letter, the wife had refrained from carrying out her part and that the learned Additional Sessions Judge had gone wrong in appreciating the facts and evidence pertaining to the action taken by the husband while conforming to the terms of the compromise. Prayer was that since the wife was in default she should be disentitled from the maintenance allowance.

As would presently appear herein below there is merit in the contentions raised. The testimony of Kuldip Chand and Mulkh Raj appearing in support of the claim of the husband pointed to the husband having made all reasonable efforts to bring back the wife and offer her a home without success. Three railway tickets produced, showing that journey had been taken from Railway Station Gill to Ludhiana Railway Station in that behalf and testimony of Kuldip Chand and Mulkh Raj had been kept out of account on wholly conjectural grounds. Friendly interested persons alone would have formed a Panchayat. The communication addressed to the wife and her mother that the wife should remain in readiness to accompany the husband on the intended visit, which communication on the report of the postman had been refused, was not given its due import in deciding the aspect in issue Non acceptance of the said communication clearly showed that the wife and her mother were in no mood to facilitate the return of the wife. Suggestion that the report of postman could be spurious without any evidence to that effect amounted to raising a special plea.

It was further clear that the husband had rented separate residential accommodation. To throw away that evidence on the score that it was part of mosque property was not justified. Be that as it may before me in these proceedings continued efforts had been made by the husband indicating not only his willingness but anxiety to get back the wife but the wife for one reason or the other remained obdurate and finally in her statement dated 17th August, 1964 made it plain that she was not prepared to go back to the husband at all. The reason adopted, apparently a lame one was that she had lost all confidence in him (the husband) and that she apprehended danger to her life from him. The husband was also examined by me in this court on 17th August, 1964. A number of adjournments meanwhile occasioned to facilitate reconciliation in terms of the compromise in First Appeal from Order 80-M. of 1962. On 3rd of February, 1934, one of the adjourned hearings, the husband paid in Court Rs. 100/- to the respondent wife and offered to take her with him. She expressed reluctance because of the residential tenement occupied by the husband not being to her liking. The husband thereupon offered to rent another tenement and in fact did so. On 3rd March, 1964, another adjourned hearing, the husband produced the rent receipt for the new premises and also paid another sum of Rs. 100/- to the respondent wife in Court. It was stated that she left the Court with him and accompanied him to Ludhiana but reaching that end changed her mind. The husband''s earnest incessant efforts thus remained unrewarded.

The respondent wife when cross-examined in this Court owned up having received Rs. 200/- in two moieties of Rs. 100/- each on the dates stated, and also conceded that when she showed reluctance to go to the premises acquired by the husband, the husband petitioner had offered that the respondent herself or through her mother or her maternal uncle could select the premises of own liking and choice and he would rent the same.

For the evidence produced by the husband which as already observed had been erroneously brushed aside and the conduct of the husband in the instant proceedings. I have no hesitation in concluding that the husband petitioner was genuine in his offer to take back the wife and that he had amply complied with the terms of the compromise arrived at in First Appeal from Order 80-M of 1962, in fact had in excess of the said terms strained all efforts to translate his said offer into action in all conceivable manner, but the respondent wife renamed reluctant and unmoved. I would, therefore, hold that the husband did his best to give effect to the order of the Civil Court and the conditions postulated by the compromise in First Appeal from Order 89-M of 1962 the respondent wife was in default and that there was no longer any subsisting cause entitling her to claim payment of a separate maintenance allowance. The change of circumstances is evident. The husband was genuine in his offer, acted bona fide and the wife''s obduracy was willful and improper.

In this view, this petition must succeed. I would allow it.