B.P. 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 Degree in English Literature while the wife was studying in the final year of the Bachelor of Arts. She also obtained later a Master's degree in Political Science. The husband after marriage obtained a Commission in the Army and the couple came to live at Panjim (Gpa) and Panchmarhi (M. P.) and last resided together at Chaksu near Jaipur. The husband is now employed in the Border Security Force.
3. 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 intemperance, 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 He wrote several letters asking her to return but she refused and thus she had withdrawn from his society without any excuse and he claimed a decree for restitution of conjugal rights.
4. The wife in answer stated that she had prosecuted her studies at her father's expense and she 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 towards 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 itwas the husband who left her with her father. She pleaded that in between 17-8-1964 and 15-2-1965 she lived with her husband at Panchmarhi (ML P,) during this period the husband's routine was to get drunk, beat her and subjected her to inhuman treatment.
Between 15-2-1965 and 28-8-1966 she remained with ter in-laws and then prcceed-td with her husband to Panjim. where she Uved 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 ca used her unbearable mental agony. On October 18, 1968 be wanted to drag her at Banipark, Jaipur to his house and she was saved by some pedestrians' intervention. He repeated bis 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 and 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.
5. 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.
6. Mr. Tibewal, 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 hi 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 V. Meena, AIR 1964 SC 40.
7. Mr. Tikku, learned counsel for the, wife, invited our attention to Mst. Gurdev Kaur v. Sarwan Singh, AIR 1959 Punj 162 and urged that the burden of proving the absence of reasonable excuse rests on the husband under Section 9 of the Act. He also relied on Samraj Nadar v. Abraham Nadachi, AIR 1970 Mad 434; Smt. Alopbai v. Ram-phal Kunjilal, AIR 1962 Madh Pra 211; Smt. Shanti Devi v. Balbir Singh. AIR 1971 Delhi 294 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.
8. Section 9 of the Act regulates the remedy of restitution of conjugal rights. In its essential particulars Sections 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.
9. 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. Later in England the remedy was recognised by the various Matrimonial Causes Acts passed from time to time and we might add that with effect from 1-1-1970 the remedy of restitution of conjugal rights is no longer available in England.
10. When the Hindu Marriage Act was drafted it is reasonable to hold that the language of Section 9 was borrowed from Sections 32 and 33 of the Indian Divorce Act of 1869. In a long series of decisions in England what has been considered to be a reasonable excuse justifying the refusal of a spouse to render conjugal rights to the other may be helpful in appreciating the scope of the expression as understood in matrimonial law. What could be valid grounds for refusal to render conjugal right received close consideration in the classic case of Russel v. Russel, ((1895) P. 315), the principles whereof were later affirmed by the House of Lords when it held that in granting or refusing to grant a decree for restitution of conjugal rights the court must consider the true facts of the case and examine whether the desertion was justified. If the court finds that there was a reasonable cause on the part of the respondent to desert the peti-tioner, then it must refuse the decree for restitution, because the granting of the decree would result in compelling the Court to treat one of the spouses as deserting the other without reasonable cause, contrary to the real truth of the case.
In Russel's case 1895 P. 315 the Court refused to grant the wife a decree for restitution because she persisted in bringing false charges of an unnatural offence against her husband and it could not be said that he was not justified in leaving her- This case also held that the spouse can only be excused if the reason is grave and weighty. We might add that it is not any whimsical, capricious or frivolous ground that one spouse could urge in refusing the society to the other. In Yeatman v. Yeatman, ((1868) 1 P & D 489) it was held that the Court had discretion in the matter which should be exercised having regard to all the circumstances of the case. In Mackenzie v. Mackenzie ((1895) AC 384 at p. 390) Lord Herschell observed that where the conduct of the petitioner, though it falls short of a matrimonial offence, yet if it has conducted to the desertion of the other spouse, it should bar a decree for restitution. He further observed:
'It is certain that a spouse may, without having committed an offence which would justify a decree of separation have, so acted as to deserve reprobation of all right-minded members of the community. Take the case of a husband who has heaped insults upon his wife, but has just stopped short at that which the law regards as saevitia or cruelty; can he when his own misconduct has led his wife to separate herself from him come into Court, and, avowing his misdeeds, insist that it is bound to give him a decree of adherence? ..................... Mightnot the Court refuse its aid to one who has so acted and regard his conduct as bar to his claim to relief?'
In Oldroyd v. Oldroyd ((1896) P. 175)) the test laid down is whether it has become a practical impossibility for the two spouses to live together.
11. The Courts in India under the Act appear to be following these principles. In Sadhusingh Balwantsingh v. Smt. Jagdish Kaur Sadhusingh, AIR 1969 Punj and Har 139 Sarkaria, J. has observed as follows:--
'The word 'excuse' appears to have been advisedly used. It is something less than 'justification', and something more than a mere whim, fad, or brain-wave of the respondent. It is a fact which has to be determined with reference to the respondent's state of mind in the particular circumstances of each case. The scope of the word 'excuse' is not restricted to the grounds which under sub-section (2) of the section can be taken in answer to a petition for restitution of conjugal rights, ...............'
In AIR 1959 Punj 162 Grover, J., laid down--
'Where the husband is guilty of conduct which falls short of legal cruelty in the sense that it is not cruelty of the kind men-tioned in Section 10(1)(b) of the Hindu Marriage Act, but his misbehaviour or misconduct is such that the wife is fully justified in separating herself from him, the husband cannot succeed in his petition under Section 9 as it will not be possible for the Court to say that the wife has withdrawn herself from his society without reasonable excuse.'
In AIR 1971 Delhi 294 Hardy, J. delivering the judgment of the Bench observed,--
'If from the conduct of the husband wife entertains an apprehension that it is unsafe to live with him, she has reasonable excuse for withdrawing from his society.'
In Kanna v. Krishnaswami Achari, AIR 1972 Mad 247 Ganesan, J. has held--
'The fact that the evidence adduced by the wife is not sufficient to sustain her plea of cruelty of the kind mentioned in Section 10(1) (b) of the Hindu Marriage Act will not justify the court in awarding restitution against her.'
The learned Judge further observed,--
'A woman of modern times is entitled to insist that her husband should treat her with dignity and self respect befitting the status of a wife and that her life with her husband will be peaceful and happy.''
12. The pleadings of the parties and the overtones of the arguments urged before us justify an examination, though brief, of the evolution from time to time in the nature of matrimonial obligations under the Hindu Law. According to Manu, the Hindu Law giver, the wife is directed to rever the husband as a God (Cf. Manu V. 154) and the husband is likewise required to honour a virtuous wife (Cf. Manu III.55). Bannerji in the 'Hindu Law of Marriage and Stridhan' indicates the position regarding the litigation arising out of matrimonial obligations thus :
'As a text of the Smriti declares litigation between man and wife to be illegal, Jagannatha opens his disquisition on this title of law with the question, 'Is it not impossible that there should be such a title of judicial procedure as the Duties of Man and Wife, since litigation is forbidden in a controversy between man and wife by a text of civil law cited in the Mitakshara.' (Cole-brooke's Digest Bk. IV, Ch. I, S. 1).'
Manu emphatically declared, 'neither by sale, nor desertion, can a wife be released from her husband.' (Chapter IX verse 46). He insisted on mutual fidelity till death. Thus according to the old concept of the Hindu Law the wife was required to treat her husband as a God. Litigation regarding matrimonial obligations was forbidden and that they could not part from one another till death for any reason whatsoever.
13. With the advent of the British Rule in India it was doubted whether a suitfor the restitution of conjugal rights in regard to a Hindu could He in a Court of law. The Privy Council case of Moonshee Buzloor Ruheem v. Shumsoonnissa Begum, (1866) 11 Moo Ind App 551 (PC) Laid down that it was available to th'e Muslims. In Kateeram Dokanee v. Mt, Gendhenee, ((1875) 23 Suth WR 178) it was held on the basis of decision in (1866) 11 Moo Ind App 551 (PC) that such a suit was permissible for the Hindus as well mutatis mutandis. This was followed in Jogendranundini Dossee v. Hurry Doss Ghose, (1880) ILR 5 Cal 500; Brindaban v. Chundra, (1886) ILR 12 Cal 140 Binda v. Kaunsilia, (1891) 13 All 126 and Dadaji Bhikaji v. Rukmabai, (1886) ILR 10 Bom 301. Then onwards a relief in the nature of restitution of conjugal rights was available to the Hindus in Civil Courts. After the passing of the Hindu Marriage Act, 1955 Section 9 gives a statutory sanction to a proceeding for restitution of conjugal rights. Thus it will be seen that with the march of time the devine status of the husband has disappeared; from the tenor of the text of Hindu Marriage Act equality of status seems to have been conferred. (For instance, see Section 24 of the Act.) The relationship can now be severed or suspended on certain grounds and marital rights of either party could be enforced against a defaulting spouse. Now, therefore, the mutual obligations of the spouses will have to be ascertained from the statute and adjudged in the background of the modern conditions, having regard to the strata of the society to which the contending parties belong. And what Maim said and his commentators wisely observed are matters only of historical interest.
14. Before we come to examine the facts of this case on the principles aforesaid, we might dispose of the arguments of the learned counsel for the appellant. The learned counsel for the appellant is correct that the pleadings in the present case leave much to be desired. It is time that it was recognised that cruelty is a matter specifically within the knowledge of the complaining party and it was, therefore, right that every specie of cruelty in respect of which evidence is proposed to be led should be specifically pleaded. But we cannot equally ignore the principle that muffasil pleadings as a matter of necessity are to be liberally construed. The wife has not pleaded, it is correct, the husband's drunkenness on the first night after their wedding but such a fact was elicited in cross-examination. But even if this fact is ignored for the sake of argument then too, as we shall presently see, there is plenty of material to come to the conclusion to which the learned single Judge had reached. The argument of variance between the pleading and the proof has for its foundation the salutary check which prudence and principles of natural justice impose against embellishment by a party and consequent surprise to the adversary. Weshall, however, keep these principles in mind while examining the evidence led.
15. It was also argued on behalf of the appellant, relying on Earnest John White v. Mrs. Kathleen Olive White, AIR 1958 SC 441 that the quantum of evidence required in matrimonial matters is the same as is required in a criminal charge. White's case has founded its reasoning on the observations of Sir William Scott in Preston Jones v. Preston Jones, (1951 AC 391 at p. 417),--
'The jurisdiction in divorce involves the status of the parties and the public interest requires that the marriage bond shall not be set aside lightly or without strict enquiry. The terms of the statute recognise this plainly, and I think it would be quite out of keeping with the anxious nature of its provisions, to hold that the Court might be 'satisfied' in respect of a ground for dissolution, with something less than proof beyond reasonable doubt. I should, perhaps, add that I do not base my conclusion as to the appropriate standard of proof on any analogy drawn from the criminal law, I do not think it is possible to say, at any rate since the decision of this House in Mordaunt v. Moncreiffee, ((1874) 30 LT 649) that the two jurisdictions are other than distinct. The true reason, as it seems to me, why both accept the same general standard -- proof beyond reasonable doubt -- lies not in any analogy but in the gravity and public importance of the issue with which each is concerned.'
Section 9 of the Act employs the words 'on being satisfied of the truth of the statements made in such petition.' This language means that the judicial mind should be satisfied with regard to the statements made in a petition for the restitution of conjugal rights in the same manner as the judicial mind is satisfied in any serious controversy with requisite care and reasonable caution. For the purposes of Section 9, however, it has been repeatedly held in English decisions that conduct falling short of cruelty is enough to resist a claim for restitution (Cf. Harnamsingh v. Kishni, 1898 Pun Re 95). In this Punjab case continued neglect by the husband was held to be a sufficient ground to deprive him of a decree for restitution. In Russel's case (1895) P. 315 also it has been held that conduct falling short of cruelty may also be pleaded by the respondent in answer to a petition for restitution. What the court is required to be satisfied about is whether there is a reasonable excuse which the refusing spouse could offer in answer to the claim for restitution. Where a wife, who though not guilty of the offence of adultery, yet, if she submits to indecent liberties with a stranger, provided a good answer to the husband to refuse the restitution of conjugal rights. (See Haswell v. Haswell, ((1859) 1 Sw and Tr 502). Therefore, what we have to gather with care and caution is whether there is a reasonable excuse for the non-co-operating spouse tocombat the claim for restitution. It is not to be proved as a matrimonial offence needed by way of a ground for divorce as held in Preston Jones's case and approved in White's case by the Supreme Court of India.
16. Having discussed the various principles which were debated before us we may briefly examine the evidence led by the parties. The husband trotted out a case of his being a complete puritan and teetotaller. The wife says that he not only drinks wine but forced her on several occasions to partake of the same. Wife's evidence is supported by that of her brother Shashi Kumar (D. W. 6) aged 24 years, who has clearly deposed that his sister and brother-in-law lived in constant tension and that her husband used to beat his sister and that he was addicted to drinking; that she received injuries several times on her face and head which bled. This evidence has been believed by the learned single Judge and, in our opinion, rightly. Mere consumption of alcohol by a husband may not be ordinarily a reasonable excuse for a wife to withdraw from the society of the husband but when it is attended by a violent temper in a given case it might be sufficient justification for such refusal. What is more is that where individual liberty entitled a wife to remain a vegetarian and a teetotaller it is mental cruelty to insist that she must follow the path which the husband was treading in personal habits. This damages individual's dignity and a highly educated woman that Saroj is, it is easy to imagine must have suffered at the hands of her unreasonably insisting and obdurate husband.
17. Even assuming that it was a mere threat that the husband wanted to contract another marriage, his issuing invitiations of his own marriage to the father of the wife and other relations, which is established by the unimpeachable documentary evidence (see Exs. A/3 and A/4) is sufficient to indicate he mental working of the husband and its consequences on the mind of a wife. A :hreat of this character is bound to be men-ally painful and touches the boundaries of legal cruelty. In modern society a wife is entitled. to a dignified behaviour from her husband who respects her independence in matters of eating and drinking and a respect for her person. The husband in the case before us seems to have shown scant courtesy on all these counts. Causing physical hurt to the wife, obstinate insistence that the wife must eat meat and drink wine and threat of another marriage cumulatively constitute cruelty both physical and mental which is a sufficient answer to the claim for restitution of conjugal rights. The learned Single Judge was right in coming to the conclusion that the husband is not entitled to a decree for restitution of conjugal rights because it is not safe for a wife in such a situation to live in these conditions.
18. The result is that this appeal fails and is dismissed with costs.