BERI, C. J. - (1.) CAPTAIN Chand Narain Gautam, the appellant before us, obtained a decree for restitution of conjugal rights from the court of the learned District Judge, Jaipur. Smt Saroj Gautam, the wife of the appellant, appealed to this Court against that decree and the learned single Judge reversed the same, aggrieved by which the husband comes up in an appeal under section 18 of the Rajasthan High Court Ordinance.
(2.) IT is not disputed that Captain Chand Narain Gautam and Smt. Saroj Gautam, hailing from Brahmin families, were married at Bundi on February 11, 1963. They have no issue from this union. At the time of marriage the husband held a Master's Decree in English Literature while the wife was studying in the final year of the Bachelor of Arts. She also obtained later a Master's decree in Political Science. The husband after marriage obtained a Commission in the Army and the couple came to live at Panjim (Goa) and Panchmarhi (M. P.) and last resided together at Chaksu near Jaipur. The husband is now employed in the Border Security Force. The husband presented a petition on February 18, 1969 saying that after marriage he encouraged his wife to prosecute her studies and in spite of all his efforts she did not improve her habits and temperament. His grievance is that the wife acted contrary to "his wishes, suggestions and directions" and levelled false charges against him of alcoholic in temperance, consumption of non -vegetarian food and violence against her. According to him, the wife went away with her father on December 25, 1967|on the pretext that there was some social function and took away with her gold ornaments weighing 22 tolas. He wrote reveral letters asking her to return but she refused and thus she had withdrawn from his society without any excuse and he claimed a decree for restitution of conjugal rights. The wife in answer stated that she had prosecuted her studies at her father's expense and the had always behaved as an educated ideal Hindu wife and stood in no need for reform as alleged by the husband because she always served him to the best of her ability. On the contrary, the wife alleged, the husband's conduct to wards her had been from the very beginning of the matrimonial life inhuman and barbarous and inconsistent with the Hindu traditions in matters of eating and drinking. She says that she endeavoured to bring him to the right path but failed. She asserted that it was the husband who left her with her father. She pleaded that in between 17 -8 -64 and 15 -2 -65 she lived with her husband at Panchmarhi (M. P.), During this period the husband's routine was to get drunk, beat her and subjected her to inhuman treatment. Between 15 -2 -65 and 28 -8 66 she remained with her in -laws and then proceeded with her husband to Panjim, where she lived upto September 1967 and even there he used to beat her and she suffered in silence. It was in July 1968 that the husband threatened to marry another woman and issued invitations to her father and other relations in his own handwriting which caused her unbearable mental agony. On October 18, 1968 he wanted to drag her at Banipark, Jaipur to his house and she was saved by some pedestrians' intervention. He repeated his attempt in Nehru Bazar, Jaipur on 11 -11 -1968 and it was with considerable difficulty that she escaped death at his hands. She has alleged that when she lived at Panjim and Panchmarhi he made her to cook meat end fish and when she declined, he inflicted injuries on her body. He also forced her to eat non -vegetarian food and to drink alcohol. These actions, she asserts endangered her health and life. The learned District Judge, Jaipur, granted the prayer of the husband for restitution of conjugal rights observing inter alia that the consumption of alcohol or eating of meat did not entitle a wife to live separately and that tolerance was an essential virtue in matrimonial relations. On appeal, the learned Single Judge held that forcing the wife to eat meat and to drink wine amounted to cruelty and he reversed the decree passed by the District Judge. Mr. Tibrewal, appearing in support of the appeal for the appellant, urged that the learned single Judge relied on those factors which were neither pleaded in answer by the wife in her written statement nor put to the husband in cross -examination. Illustrating this point, he submitted that there was no mention of the fact in the pleading that the husband met the wife on the first night drunk or that he forced her to drink alcohol at Chaksu. From this, the learned counsel urged that the wife is guilty of embellishments and the learned Judge was in error in taking into consideration these factors which have vitiated his judgment. His next submission was that the quantum of proof in matrimonial charge should be analogous to the one in a criminal case and the wife's plea was not thus fully proved. He also argued that according to the Hindu concept of matrimonial life the wife was required to show tolerance and section 9 of the Hindu Marriage Act, 1955 (hereinafter called "the Act") should be so construed as to advance matrimonial relationship rather than disrupting it. He placed reliance on Lachman Utamchand Kirpalani vs. Meena alias Mota (1 ).
(3.) MR. Tikku, learned counsel for the wife, invited our attention to Mst. Gurdev Kaur vs. Sarwan Singh (2) and urged that the burden of proving the absence reasonable excuse rests on the husband tinder section 9 of the Act. He also relied on Samraj Nadar vs. Abraham Nadachi (3), Smt. Alopai vs. Ramphal Kunjilal (4), Smt. Shanti Devi vs. Balbir Singh (5), and argued that the wife's obligations are not to be judged by ancient standards and in the case before us the wife was perfectly entitled to disobey her husband in the matter of eating and drinking. He further submitted that the basic facts on which the judgment of the learned single Judge is founded are contained in the written statement. Section 9 of the Act regulates the remedy of restitution of conjugal rights. In its essential particulars section 9 (1) and 9 (2) are almost identical to the language employed in sections 32 and 33 of the Indian Divorce Act (IV of 1869 ). What is not controverted before us is that the wife refuses to render conjugal rights to the husband. The only question which we have to ascertain is whether her refusal is for reasonable excuse and is of the nature envisaged by section 9 (2) of the Act. The remedy of restitution of conjugal rights owes its origin to the Ecclesiastical Courts of the West. Such courts by a decree of restitution of conjugal rights compelled the recalcitrant spouse to discharge the due obligations towards the complaining spouse. For disobedience of such a decree the punishment in the Ecclesiastical Courts was by way of excommunication but by a statute of George III imprisonment was substituted. Latter in England the remedy was recognised by the various Matrimonial Causes Acts passed from to time to time and we might add that with effect from 1 -1 -70 the remedy of restitution of conjugal rights is no longer available in England. ;