JUDGMENT
D.M. Dharmadhikari, J.
1. This is an appeal by the wife under Section 28 of the Hindu Marriage Act, 1955 (in short ‘the Act’), against the decree of restitution of conjugal rights, granted in favour of the respondent husband under Section 9 of the Act, by judgment dated 4.5.1989 of the Court of 4th Additional Judge to the Court of District Judge, Jabalpur.
2. The marriage between the parties took place on 28.5.1983 at Kamptee, district Nagpur in the State of Maharashtra. They lived together at Kamptee between 28.5.1983 and 9.6.1983 and then shifted to Jabalpur on 10.6.1983 where the husband is employed as a tracer in the office of the Executive Engineer, P.W.D. The wife had, for a few days gone to her parents’ house and lived there between 6.7.1983 to 30.9.1983. The wife again lived with the husband between 30.9.1983 to 23.10.1983. Thereafter she went along with her father to Kamptee and never returned to the husband’s place at Jabalpur.
3. The case of the husband is that the wife left with her father on 24.10.1983 on the pretext that her mother was unwell, but thereafter she never returned inspite of repeated efforts and importunities of the husband to bring her back to the matrimonial home.
4. The husband having failed in all his attempts to persuade the wife to join him for discharging her marital obligations towards him, was compelled to file the petition for restitution of conjugal rights. The wife opposed the petitioner on pleadings inter alia that soon after the marriage, the husband and the members of his family started ill-treating her for not bringing sufficient dowry in the shape of cash, articles and ornaments. The wlfs alleged that on 23.10.1983 when her father had come to take her to her parental house at Kamptee, the father of the husband scolded and humiliated the father of the wife. It was also alleged that the husband and his father were not prepared to send her back to her parents. The wife having suffered harassment and torture in the house of the husband came out of the kitchen and expressed willingness to go with her father whereupon it was alleged that the husband approached towards her furiously and physically pushed her out of the house. The wife thus resisted the proceedings of restitution of conjugal rights on the ground of ill-treatment to her and she having been insulted and humiliated by driving her out of the house, It was also alleged that no sincere efforts were made by the husband to bring her back to the matrimonial home.
5. The trial Court held against the wife that there existed no reasonable excuses for her to withdraw from the society of the husband and the husband was entitled to a decree prayed for by him.
6. Learned Counsel appearing for the wife in this appeal first raised a question of want of jurisdiction with the trial Court to proceed with the case. It was argued that the jurisdiction of the trial Court was ousted due to constitution of Family Court for Jabalpur district vide notification dated 23.1.1989, issued under the provisions of Section 3 of the Family Courts Act, 1984. The learned Counsel submitted that after constitution of Family Courts the jurisdiction of the trial Court was barred under the provisions of the Act and the proceedings ought to have been transferred for disposal to the Family Court under Section 8 of that Act. This objection based on jurisdiction of the trial Court need not detain me any further in view of the clear pronouncement of the Division Bench of this Court in the case of Shankar Kanojia v. Mayabai and Another (1990 M.P.L J. 435). It has been held in the above case that the establishment of Family Courts implies that the judges to preside over the Family Courts have been appointed and were effectively functioning. Mere issuance of notification establishing the Family Court would not amount establishment of a Family Court in the absence of appointment of Presiding Judge. The Division Bench, therefore, over-ruled the objection of want of jurisdiction to the trial Court as has been raised in this case.
7. So far as the merits of the case are concerned, the learned Counsel for the wife submitted that ill-treatment of the wife for dowry demands and mis-behaviour with her and her father by the husband on 23.10.1983 furnished a reasonable excuses for the wife not to return to the husband. Reliance is placed on the following decisions:
(i) Smt. Alopbai v. Ramphal (I.L.R. 1962 M.P. 398)
(ii) (ii) Baburao v. Smt. Sushilabi and Ors. (I.L.R. 1963 M.P. 462); and
(iii) Smt. Rebarani Sengupta v. Ashit Sen Gupta (AIR 1965 Calcutta 162).
8. Learned Counsel appearing for the appellant/husband supported the decree and in reply submitted that merely because some mis-understanding had crept in the early life of the marriage between the parties and their relations, is no ground for the wife to permanently desert the husband and deny him her company. The learned Counsel also invited attention of this Court to the proceedings which took place in this Court for reconciliation between the parties. The Counsel informed that in the course of pendency of this case and an attempt for reconciliation, the husband was ever willing to receive the wife and to treat her with all kindness and affection, but the wife adopted an adamant attitude. The Counsel informed that the husband during the course of reconciliation proceedings in this Court actually went to the. wife at Kamptee but she declined to accompany him back to the matrimonial house. The Counsel, therefore, submitted that the husband deserves a decree of restitution of conjugal rights and if necessary on that basis a decree of divorce under Section 13(1A) of the Hindu Marriage Act.
9. In this case there is no controversy between the parties that on 23.10.1983 the wife left the house of the husband. The only controversy is to the occasion for it and the nature of incident which led the wife to leave the house of the husband. The case of the husband was that the wife left on the pretext of illness of her mother, whereas the wife states that her father was insulted and she was virtually pushed out of the house as the dowry demands of the husband were not fulfilled.
10. The trial Court, in my opinion, rightly came to the conclusion that the plea regarding dowry demands of the husband and the ill-treatment meted out to the wife for the same have not been raised with sufficient particulars. When the wife was confronted with these omissions in her cross-examination, she agreed that she had not furnished all the details regarding such dowry demands and ill-treatment, to her Counsel who drafted the written statement. It appears to me that she has tried to exaggerate the fact of displeasure shown by the husband and his family members with regard to the marriage ceremony. She also appears to have exaggerated the incident of 23.10.1983 when she had to leave the house with her father bare footed and without any luggage or her ornaments. Having gone through the relevant part of the evidence led by the parties I have formed an opinion that the case of the wife cannot be totally rejected that she did suffer some mental agony and humiliation by the behaviour of the husband and his family members. She also cannot be totally disbelieved that on 23.10.1983 the husband got so much angry over her that he drove her out of the house. But the question is whether the aforesaid acts of mis-behaviour on the part of the husband furnished a ‘reasonable excuse’ for the wife to ‘permanently withdraw from society’ of the husband.
11. In the above respect, the provisions of Section 9 of the Act as they stand after amendment by the Marriage Laws (Amendment Act 68 of 76) will have to be considered. Section 9 of the Act provides an aggrieved party to the marriage to obtain a decree of restitution of conjugal rights against the erring party, if for any reasonable excuse the other party has withdrawn from the society of the aggrieved party. The explanation added to Section 9 provides that the burden of proving reasonable excuse shall be on the person who has withdrawn from the society. It may be noted that prior to the Amendment made to the Section by the Act 68 of 1976,there was Sub-section (2) to that section under which “nothing could 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”. The omission of Sub-section (2) from the original Section 9 has no doubt evinced the intention of the legislature that even on conduct falling short of cruelty or any other matrimonial offence can justify one spouse in leaving the other, but in any case the use of the expression’ ‘reasonable excuse’ to withdrawing from the society of the husband makes it necessary for the aggrieved party to show that there is a ‘just cause’ or cause which is sufficiently ‘grave and weighty’ or ‘grave and convincing’ for the concerned party to withdraw from the society of the other party. [See Hindu Law by 16th Edition-page 643].
12. On the above legal position it has to be determined whether the facts of this case make out that the wife has proved a conduct on the part of the husband which is of such grave and weighty character that she can stay away from the husband. As I have commented above, on facts, there may be some truth in the version of the wife that she was constantly insulted, humiliated and scolded for not having brought gifts and dowry in the marriage as was expected by the members of the family of the husband. It may also be true that there was a misunderstanding on that count between the members of the two families and there was hot exchange of words between the father of the wife and the husband and his father on 23.10.1983 when she left the house under compelling circumstances. But in my opinion, the above conduct on the part of the husband and his family members could not be said to be a reasonable excuse for the wife to deprive the husband of her company for all times. In this respect it is pertinent that on a specific question being put to her in cross-examination on behalf of the husband as to whether she was willing to live with him if he assured her all good behaviour in future, her definite reply was in the following language:
“Since I have no confidence in my husband, I am not prepared to go to him.” (rendered into English).
According to me it is also relevant that during re-conciliation proceedings in this Court, the husband and the wife both were directed to remain pre sent on 30.4.1990. They did appear on 16.7.1990 in this Court and the order sheet of the Court records that the respondents agreed to keep the appellant/ wife, but the appellant/wife declined. In the second attempt of re-conciliation on 13.8.1990, the husband undertook to go to his inlaws on 18.8 1990 to bring the wife. The order-sheet dated 13.8.1990 reads as under:
“Shri M.P. Verma, Adv. for the appellant.
Respondent in person.
Respondent undertakes to go to his inlaws
place on 18th August 1990 to bring his wife.
List the case after fifteen days for further orders.
Sd–
JUDGE.”
13. The Counsel for the husband and the husband who were present in the Court on the date of hearing, stated that pursuant to the order of the Court dated 13.8.1990, the husband had gone to bring the wife back to their home, on 18.8.1990, but the wife did not come with him. The above statement made by the husband and his Counsel was not denied by the Counsel appearing for the wife that the husband had gone to bring the wife back during pendency of this appeal.
14. Even before me at the time of hearing I proposed to the parties that I would adjourn the case for about three months and in the meantime the parties should use the period as a trial period to live with each other and report the matter to me for further hearing of the case. The husband was willing for grant of such a trial period, but the Counsel for the wife stated that all previous attempts having failed, that would be of no utility. The Counsel for the wife also admitted that the wife felt greatly humiliated and the husband has not been able to pancity her in all the past meetings between them.
15. Learned Counsel for the husband is right in submitting that in early years of marriage, physical attraction towards each other and sexual needs may be predominent, but with passage of time and as the marriage partners grow mature, what is required for ensuring smooth and happy married life is the mutual adjustment between them. Unfortunately, in this case, the wife is totally admant for no apparant justifiable reason. As I have said above, her version is not worthy of ought right rejection that she was illtreated in the beginning of the her married life, for not satisfying the expectations of the husband and his family members of gifts and presents in the course of marriage ceremony. It is also clear that on the above issue mis-understandings had developed between the parties and tempers rose on 23.10.1983 when the father of the wife went to bring her. Exchange of gifts and presents as a necessary custom of formality in Hindu society, is according to me a curse which could not be curbed even by lagislation. The marriage custom amongst Hindu continues to be the same where the groom party, even if no terms of dowry are fixed expects from the bride party sumptuous presents, gifts and ornaments, if not cash. The social curse in the form of traditions and customs amongst Hindus, in marriages, cannot be eradicated by law, but it will require social reforms by great leaders in the society with immense influence and merit, for which it appears the Hindu society will have to wait for ages. This bad system of exchange of gifts and presents during marriage has been responsible to create attained relations in several Hindu marriages, leading to such tragic incidents of break-down of marriage and the present case is an instance.
16. Misunderstandings between the parties during marriage ceremony and immediately thereafter, however, according to me do not constitute such grave and weighty ground for the wife to desert the husband for all times, more ‘ so when the husband has made sincere efforts, atleast to the knowledge of this Court, during pendency of this appeal to persuade the wife to live with him.
17. Taking into consideration the totality of the circumstances existing at the time of marriage, during short period of their married life and during reconciliation proceedings in this Court, I am clearly of the opinion that the wife has no reasonable excuse, in the absence of a weighty and convincing reason to withdraw from the society of the husband.
18. The decree granted by the Trial Court, therefore, deserves to be confirmed.
19. Consequently, this appeal fails and is hereby dismissed. As has come on record, since the husband is still willing to receive the wife to the matrimonial home, I do hope that this decree granted by toe Court and confirmed by me would not only be used as a ground by the husband to seek decree of divorce under Section 12(1A)(1) of the Act, to which he is, as of right, in law entitled, but would also afford a fresh opportunity to the parties to make another attempt to live together and mutually adjust with each other with love and respect. Under the circumstances, there shall be no order as to costs of this appeal.