- (1.) The matrimonial bond between Appellant wife and Respondent-husband was formed in 1966. In 1967 a female child was born out of the wedlock. At about this time, the wife was allegedly abandoned by the husband. On March 11, 1969, she instituted a petition under Section 488 of the Code of Criminal Procedure in order to claim maintenance. Within three days of this development the husband instituted a petition for restitution of conjugal rights under Section 9 of Hindu Marriage Act which has been characterised as a counter-blast having regard to the timing of the petition.
(2.) The trial court negatived the plea of the wife that the husband was guilty of cruel treatment and accordingly she was justified in withdrawing from the society of the husband. The evidence adduced by the wife was disbelieved. The trial court under the circumstances, granted a decree for restitution of conjugal rights in favour of the Respondent-husband. The wife approached the High Court by way of a First Appeal. The learned Single Judge who heard the First Appeal closely and carefully scrutinised the evidence adduced by both the parties. Upon appreciation of evidence the learned Single Judge came to the conclusion that the witnesses examined by the husband were not reliable. The evidence of the husband was considered unworthy of acceptance. On the other hand the evidence of the wife inspired confidence. The learned Single Judge accordingly concluded that the husband was guilty of cruelty towards the wife. The learned Single Judge on these premises allowed the appeal and dismissed the husband's petition for restitution of conjugal rights The husband preferred a Letters Patent Appeal to the Division Bench of the High Court. We are constrained to say that the learned Judges have altogether failed to examine the evidence adduced by the parties. The learned Judges failed to apply their minds to the reasoning unfolded in the elaborate judgment of the learned Single Judge. The Division Bench has not disagreed with the assessment of evidence made by the learned Single Judge or the findings recorded by him. And even so, the Division Bench has reversed the decision of the learned Single Judge and set aside his judgment. It may be reiterated that the learned Single Judge has accepted the evidence of the wife and the witnesses examined by her whereas he has disbelieved the evidence of the husband and the witnesses examined by him. It was on an in-depth assessment of the evidence made by the learned Single Judge that he had rested his conclusion that the wife was justified in withdrawing from the society of the husband in view of the fact that the husband was treating her with cruelty. If the Division Bench had disagreed with the assessment of the evidence and had reached the conclusion that the findings recorded by the learned Single Judge were not warranted, it would have been a different matter. It would have been understandable. What the Division Bench has done is reflected in the following passage extracted from the judgment under appeal: Subsequently, an affidavit was filed by the husband that on the date fixed he went to the village of the wife but she refused to accompany him. On the last date of hearing the case was adjourned to enable Mr. B.S. Shant, the learned Counsel for the wife-Respondent, to ascertain whether she was willing to go to the house of the husband or not. Mr. Shant states that he sent for the wife and her relations and tried to persuade them but the wife is not willing to go to the house of the husband because she is afraid of him. In view of the above, it is clear that it is the wife who is refusing to go with the husband notwithstanding the fact that the conditions imposed by her with regard to somebody to stand surety for good treatment by the husband towards her, has been fulfilled. We feel that the only proper course is to grant a decree for restitution of conjugal rights in favour of the husband and against the wife. It is abundantly clear that the Division Bench has set aside the judgment of the learned Single Judge merely because the wife expressed her unwillingness to resume co-habitation with the husband on the ground that she was afraid of her safety. The question to which the Division Bench should have addressed itself was whether she was justified in refusing to resume co-habitation on this ground in the context of the evidence adduced by her to the effect that the husband was treating her with cruelty and that it was not safe for her to continue to live with the husband. If the Division Bench had reached the conclusion that the unwillingness was not justified or that the apprehension expressed by the wife was ill-fouaded, the Division Bench could have set aside the order of the learned Single Judge. But merely because the wife was unwilling to resume co-habitation, the High Court could not have lawfully passed the decree for restitution against her. For, she was indeed entitled to refuse to resume co-habitation if she was subjected to cruel treatment and if she felt unsafe. Since the Division Bench had not scrutinised the evidence and recorded its own finding on this issue it is not possible to uphold the decision rendered by the Division Bench. Under the circumstances, the appeal must be allowed and the judgment and decree passed by the Division Bench must be set aside. The matter must go back to the Division Bench of the High Court in order to hear the Letters Patent Appeal afresh on merits and to decide it in accordance with law after affording reasonable opportunity to the parties to make their submissions. We have no doubt that the High Court will once again make a fresh effort to resolve the dispute between the parties by evolving a formula acceptable to both sides. The appeal is allowed accordingly with these observations. There will be no order as to costs.;