Shankarappa vs Sangawwa

SABHAHIT J.-This appeal by the petitioner-husband is directed against the judgment and order dt. 28.7.79, passed by the Addl. Civil Judge, Bijapur in M.C. 12/1976 on his file rejecting the petition of the husband for restitution of conjugal rights.

It is the case of the petitioner-husband that he was married to the respondent according to the Hindu religious customs, in the year 1970 and thereafter for some months she stayed with him as his wife and then started very often visiting her parents house without the consent of the petitioner husband. Ultimately a notice was issued to her on 1.4.76 to come back and live in the marital home and discharge her obligations as wife. Instead of complying with the notice, she sent an evasive and false reply. Again the petitioner got issued another notice on 23.4.76 as per Ex. P-1 calling upon her to come and stay with him. She replied that notice, as per Ex. P-2, but she did not turn up. On the other hand she instituted a suit, in O.S. No, 156/ 1976 in the Court of the Munsiff, Bijapur, for maintenance on 14.6.76. Ultimately the husband was compelled to institute the petition before the learned Civil Judge, Bijapur for restitution of conjugal rights on 13.7.76. The husband prayed for a judgment for restitution of conjugal rights in the petition.

The wife resisted the petition on several grounds. She contended that she was treated cruelly and was driven out of the house. According to her her husband wanted to marry again as he could not beget a child from her. She was forced to give consent for divorce and since she refused to give her signature on the consent letter, she was treated cruelly and badly by all members of the family and she was ultimately driven out of the house. Thus she asserted that she did not voluntarily desert her husband.

The learned Civil Judge raised the following points as arising for his consideration:

(1) Whether it is proved by the petitioner that the respondent without reasonable excuse had withdrawn from the society of the petitioner?

If so. whether the petitioner is entitled for a decree for restitution of conjugal rights?

(3) What order?

During hearing the husband examined himself in support of his case and examined two other witnesses and got marked Ex.P-1 and P-2. The wife examined herself in support of her case.

The learned Civil Judge appreciating the evidence on record, held on both the points in the negative and in that view dismissed the petition for restitution of conjugal rights. Aggrieved by the said order the husband-petitioner has come up with the above appeal before this Court.

The learned Counsel for the appellant strenuously urged before us that the very approach of the Civil Judge to the facts of the case has been erroneous. He invited our attention to the fact that the learned Civil Judge was oblivious of the amendment of the Hindu Marriage Act brought about in 1976 to S. 9 of the Hindu Marriage Act, by which clause (2). was deleted and an Explanation was added. Thus he submitted that the judgment and order of the learned Civil Judge could not be sustained.

The learned counsel for the respondent wife however argued broadly, supporting the judgment and order of the learned Civil Judge.

The sole point, therefore, that arises for our consideratoin, in this appeal is: Whether the approach of the learned Civil Judge to the facts of the case has been legally erroncous and that way whether the appeal is entitled to succeed?

S. 9 of the Hindu Marriage Act before amendment of 1976 read:

"(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 ofthe 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 apetition for restitution of conjugal rights which shall not be a ground for judicial separation or for nullity of marriage or for divorce"

After the Amendment Act 68/1976, which was published in Part-II, S.-I of Gazette Extray dated 27.5.76 received the assent of the President on 27.5.76, the amended S. 9retained the original sub-section (1) as it is and S. 3 of the amended Act reads:

"Amendment of Section 9-

In section 9 of the Hindu Marriage Act. (a) In sub-sec. (1) brackets and figures (i) shall be omitted and to that sub-section as so amended the following explanation shall be added, namely:

"Explanation: Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society."

(b) sub-section (2) shall be omitted."

Thus, after amendment, sub-section (2) is omitted and explanation is added to the section.

The learned Civil Judge, however, has not obviously noticed this position though the amendment Act came into force on. 27-5-76 itself. In the course of his judgment in para-6 he has written inter alia thus:

"Further it is also necessary that there is no ground as to why the decree should not be passed. As per clause (2) of S. 9 of the Act, nothing can be pleaded in answer for a petition for restitution of conjugal rights which is not a ground for judicial separation or for nullity of marriage or for divorce. Grounds for judicial separation have been enumerated under S. 10 of the Hindu Marriage Act, for nullity of marriage under S. 11 and for divorce under S. 13 of the Act."

That clearly shows that the learned Civil Judge was oblivious of the amendment. This makes all the difference because in the Explanation that is added by the amendment, it is stated very clearly that the burden of proving reasonable excuse shall be on the person who has withdrawn from the society of the other spouse. That being so, it is very clear that in the instant case, the respondent wife in the, petition has pleaded that she withdrew from the company ofthe petitioner because she was illtreated by her husband and was neglected by him and that is why she was forced to file a suit for maintenance etc., thus the burden of proving the reasonable excuse, namely, that the husband treated her cruelly and neglected her, lies on the wife and a point has to be raised in that behalf and an opportunity has to be given to the wife to prove the same. If necessary by adducing additional evidence.

In the circumstances we are satisfied that the wife-respondent is prejudiced, so also the husband-petitioner by the approach of the learned. Civil Jugde. Hence, his order cannot be sustained. The appeal is, therefore, entitled to succeed.

In the result, the appeal is allowed, the judgment and order of the learned Civil Judge are set aside and the case is sent back to the Court of the Civil Judge, Bijapur, for fresh hearing of the application after raising the necessary additional point as suggested above. The learned Civil! Judge shall give adequate opportunity to the parties, if they so desire to adduce additional evidence and then proceed to Judgment and order in accordance with law. There shall be noorder as to costs of this appeal.

The parties are directed to appear before the learned Civil Judge, Bijapur, on 14.10.1982, for taking further instructions.

Send back the concerned records forthwith.