Topic: Mirchumal v. Devi Bai - Restitution of Conjugal Rights

Mirchumal vs Smt. Devi Bai
Equivalent citations: AIR 1977 Raj 113- Date of Judgment: 8 December, 1976

Bench: S Modi


1. This is a civil miscellaneous first appeal against the order of the District Judge, Ajmer, dated August 8, 1972, rejecting the petition of the appellant under Section 9 of the Hindu Marriage Act, 1955 (hereinafter referred to as "the Act").

2. The facts of the case are that the appellant is a resident of Ajmer while respondent is a resident of Adipur, district Bhuj in Gujarat. They were married at Ajmer according to the Hindu rites on November 5, 1964. At the time of the marriage, the appellant was in service at Didwara near Ajmer and the respondent was in service at Adipur. It appears that during the vacations, the respondent used to come to Ajmer and reside with her husband. This sort of life continued up to May 1968. Thereafter the respondent left service and commenced living permanently with her husband. A daughter was born to the respondent on August 14, 1967. On or about April 6, 1969, the respondent left Ajmer and went to Adipur in connection with the marriage of her sister. Thereafter, she joined service at Anand in Gujarat State as a school teacher. When the respondent did not return to Ajmer to live with the appellant, the latter, on January 31, 1970, moved the petition (out of which this appeal has arisen), under Section 9 of the Act for grant of a decree for restitution of conjugal rights. The respondent in her written statement admitted the marriage between the parties.

She also admitted that after the marriage, she was living at Adipur in connection with her employment up to May 1968. She also admitted that she left service and came to live with her husband in the year 1968, but, according to her, her living with her husband was not liked by her husband as well as by her mother-in-law. It was also urged by the respondent that the appellant was having illegitimate connections with one Mst. Sundari. The respondent protested against the illicit intimacy with Mst. Sundari, but her husband did not pay any heed to it. The respondent, thereafter, on April 6, 1969, left Ajmer and joined service at Anand.

3. The respondent in her written statement alleged that she was prepared to allow the appellant to have marital relations with her while her remaining in service. She further alleged that she was prepared to go and live with her husband during vacations. She also said that her husband was free to live with her as and when he liked to do so. From her reply, it appears that she was not prepared to leave her job, as, according to her, that would put her to difficulty.

4. The learned District Judge, after framing issues and recording evidence of the parties, came to the conclusion that the allegations made by the respondent that her husband and her mother-in-law were ill-treating her and further that her husband was in illicit intimacy with Mst. Sundari, have not been proved. The learned District Judge then dealt with the important question whether the respondent withdrew from the society of the appellant without reasonable excuse? In this connection, the learned District Judge dealt with the question whether respondent's going from Ajmer to join service at Anand was unjust and without reasonable cause, and can this be treated as leaving the society of her husband without reasonable excuse within the meaning of Section 9 of the Act. The learned District Judge answered this question in the negative. He observed,--

"The society has much advanced and now education is imparted equally to both males and females. The pattern of society has changed altogether. The wife cannot be prevented from taking up employment and cannot be forced to reside at the same place where her husband is living or serving. If she is compelled to give up her employment, and without doing so, she cannot reside with her husband at the place where he is serving, then it would mean inequality before law and serious infringement of her fundamental rights as enshrined in our Constitution. In the instant case, the non-petitioner is prepared to come and reside with her husband during vacation or during holidays which she might set. Similarly, she is prepared to welcome her husband whenever he finds time and opportunity to go and reside with her. I am, therefore, of this view that in the circumstances mentioned above, it cannot be said that the non-petitioner has left the society of her husband without just cause."

5. Arguing the appeal, the learned Advocate for the appellant, has contended that under the Hindu law a wife's duty to her husband is to submit herself obediently to his authority and to remain under his roof and protection. According to the learned counsel, the wife is not entitled to live separate from her husband unless she proves misconduct or misbehaviour on the part of her husband. The learned counsel emphasised that unless there are circumstances which forces the wife to live separate from her husband, the wife ought to live with her husband and her employment elsewhere is no ground for her living separate from her husband. It has further been contended that her preparedness to welcome her husband at the place where she is serving whenever he wished to live with her and to go to her husband's house during vacation or other holidays and live with her husband cannot be deemed to be a reasonable excuse for living separately. According to the learned counsel, this virtually means withdrawal of the wife from the society of the husband. In support of his contention, the learned advocate has placed reliance on Smt. Tirath Kaur v. Kirpal Singh, AIR 1964 Punj 28 wherein Grover J., as he then was, observed,--

"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 herself from the society of the husband in this manner."

The learned counsel for the respondent has supported the view taken by the learned District Judge.

6. The question which arises for consideration in this appeal is whether, in the circumstances of the case, the appellant is entitled to relief under Section 9 of the Act. Section 9 runs as under,--

"9. (1). Restitution of conjugal rights.--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."

It is necessary for the appellant to show under Section 9(1) of the Act that the respondent had withdrawn from the society of the appellant without reasonable excuse and further that no legal ground had been made out as to why the relief of restitution of conjugal rights should not be granted. Whether, in the present case, the respondent had a reasonable excuse in withdrawing herself from the society of the appellant or not, is to be determined in the light of the surrounding circumstances. The first important circumstance which is no longer in dispute is that even at the date of the marriage, the wife was in employment far away from the place of the residence of her husband. The marital relations between the parties continued for four years from 1964 to 1968 living far away from each other. It is admitted fact that during this period of four years both of them used to live together and cohabit during vacation or holidays. It is further not in dispute that in the year 1968, the respondent left the job and commenced living permanently with her husband. They so lived up to March 1969. Some unhappy developments must have occurred during this period which forced the respondent to again join the service at Anand in September 1969. In her statement, she has categorically deposed that the door of her house is open for her husband where he can come at any time it suits him. She has further deposed that during vacation, she is also prepared to come and reside with her husband where he is serving.

7. The question arises whether in this back-ground the husband is justified in asking the wife to live with him after giving up her job on the ground that conjugal duties cannot be performed if the wife lives at such a distance from her husband ? Again, if the wife refuses to give up her job, would her refusal entitle the husband to a decree for restitution of conjugal rights under Section 9 of the Act ? It is true that according to the principles of Hindu Law a wife after marriage is bound to be dutiful towards her husband and remain under the protection of her husband in his house. But the concepts of protection of the husband are not inelastic and rigid which cannot be moulded in the context of present day conditions and needs of the society. Women are now no longer confined to four-walls of their houses. In view of the altered social and economic conditions both husband and wife may think it necessary to work. There might be cases where a wife might have to live by herself while the husband is working at a place where he cannot take his wife along with him. If under such compelling circumstances a wife has to live away from her husband then there would be two homes; one where the husband lives and the other where the wife resides. Such a situation would not be said to run counter to the principles of Hindu Law In such a situation, it cannot be said that she has withdrawn herself from the society of her husband without reasonable excuse. If the wife had said that she would not allow her husband to come to her house and live with her that would have amounted to withdrawal from the society of her husband. But where, as in the present case, the wife says that she would go to her husband and live with him during vacation and other holidays and allow her husband at his convenience to come and stay with her at her residence, I do not think that it could be said that the wife has withdrawn from the society of her husband.

8. The next question which arises is can a husband insist upon his wife to resign from her job ? As stated above, it sometimes happens that a husband has to live away from his wife on account of his service at a place far away from his house and he only comes to visit his wife for a month or two in a year. Will it be reasonable for the wife, in the circumstances, to say to her husband to resign his job otherwise she would leave turn ? The answer, in my opinion, must be in the negative. The question arises whose voice should be decisive, whether that of the husband or that of the wife ? In my opinion, where a wife feels that she should work, the decisive voice must be her own and if there is disagreement between her and her husband, the latter cannot compel her to leave the job. 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 her 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 part to resign her job is sufficient ground for the husband to seek relief for restitution of conjugal rights. So long as the respondent wants to maintain the relationship of husband and wife with the appellant' and she does not cut herself off from her husband in the sense that she refuses him to perform his marital rights or refuses to allow him to live with her at her own residence, the mere fact that she is herself working against the wishes of her husband, will not furnish a good ground for a decree for restitution of conjugal rights. I am supported in my view by a decision of the Allahabad High Court in Shanti Nigam v. Ramesh Chandra Nigam, 1971 All LJ 67.

9. In my opinion, the learned District Judge, in the circumstances of the case, rightly rejected the petition.

10. The appeal fails and is dismissed. The parties will bear their own costs in this Court.