S.S.Sandhawalia, J. - (1.) DOES the Hindu Marriage Law countenance or sanctify the concept of (what may be conveniently so called) a week end marriage as of right at the unilateral desire of the wife, is the rather interesting and significant question which falls for determination by this Full Bench.
(2.) ORIGINALLY before the Letters Patent Bench, two questions had arisen upon which there was apparent conflict of authority, and had thus necessitated this reference. Firstly, whether the relief of conjugal rights could be declined to a husband on any other ground except those envisaged in the then unamended Section 9 of the Hindu Marriage Act? Allied thereto was the ancillary issue of the burden of proof thereof Secondly, whether a wife, who was gainfully employed at a place away from her matrimonial home, would be justified in law to refuse to leave her job and join her husband to live in the matrimonial home despite the insistent demand of the husband to do so? The first question upon which the various High Courts had differed, as noticed in the referring order, now stands amply resolved by the recent amendment of Section 9 of the Marriage Laws (Amendment Act of 1976). Section 3 of this Act now provides that Sub -section (2) of Section 9 shall be omitted and further that the following explanation shall be added to the original Sub -section (1) - - 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excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the Society. It is evident from the above that the legislature has forthrightly cut the Gordian knot of conflict on this point and, therefore, no reference to this aspect of the case is necessary. The only issue that consequently survives for decision is the one noticed at the very outset. The Appellant Smt. Kailash Wati was married to the Respondent Ajodhia Parkash on the 29th of June, 1964, and at that time both of them were employed as village level teachers - -the Appellant at her parental village of Bilga in tahsil Phillaur and the Respondent at village Kot Ise Khan. After the marriage, the Appellant was transferred to the station of her husband's posting and in all they stayed together in the matrimonial home for a period of 8 to 9 months. The allegation of the Respondent -husband which is well borne out from the record is that thera Appellant manoeuvred to get herself transferred again to village Bilga and virtually ever since has been residing there with her parents against his wishes. It is the common case that but for a paltry spell of 3 or 4 days in September, 1971, when the Appellant accompanied the Respondent to Moga, the couple has not lived together. Ajodhia Parkash Respondent, therefore, filed an application for the restitution of conjugal rights under Section 9 of the Hindu Marriage Act (hereinafter called as the Act) on the 4th of November, 1971, and in her written statement the Appellant took up the plea that she had never refused to honour her matrimonial obligations but was firm in her stand that in the existing situation she would not revert to the matrimonial home. It was categorically stated that she was not prepared to resign her job and to return to the conjugal home despite the insistence of the Respondent. The trial Court decreed the suit of the husband Respondent on the 5th of February, 1973. On an appeal preferred by the wife the learned Single Judge, whilst placing reliance on a Single Bench judgment of this Court reported in Smt. Tirath Kaur v. Kirpal Singh , A.I.R. 1964 Pun. 28 upheld the findings and the decree of the trial Court. It, however, deserves mention forthwith that the view in Smt. Tirath Raw's case above mentioned was substantially modified (apparently by way of compromise) by the Letters Patent Bench on the 2nd of December, 1963, but the judgment appears to have been reported rather belatedly in Smt. Tirath Kaur v. Kirpal Singh, 1975 RLR 512.
(3.) ERE I come to the legal issues involved, it is apt to notice with some precision the firm stands taken on behalf of each of the contending spouses which has been accepted by the Courts below. The husband's stand is that even at the time of the original presentation of the petition in 1971, his wife had unilaterally withdrawn from the matrimonial home for a continuous period of six years. He claims to be in a position to maintain his wife in dignified comfort at his place of posting with his salary, income from agricultural land and also from other sources. Therefore, he insists that she should return to live with him in the conjugal home. It is highlighted on his behalf that for the twelve long and best years of his life the wife has denied him the society and sustenance of conjugal life and if she persists in her adamance there is little possibility of her returning home till perhaps her superannuation from Government service.;