" It is true that in normal circumstances it is the duty of the wife to live with the husband and only in exceptional cases she can demand the contra. But in this case on an understanding between the spouses they were living in the wife's house only till 1976 and not till 1983 as pleaded by the husband. All on a sudden he left the company of the wife for no justifiable reason. He had no place to offer to the wife to come and stay till 1983 when he constructed a house of his own. There is no evidence to show that he had required his wife to come and stay with him before 1983 in any house which he could have procured had he intended to do so. Not only that, he had not made any enquiries or arrangements for the well being of his wife and children. He had not taken any interest in the education of his children in spite of the fact that he is a teacher in a high school. He has completely failed to discharge any of his marital obligation for no reason. In view of the above facts it can safely be concluded that the husband left the matrimonial home in 1976 with an intention of bringing cohabitation permanently to an end and that he is guilty of desertion. The sudden change of attitude and the superior claim as a husband made in 1983 is not at all bona fide and the wife is perfectly justified in not agreeing to join him at present."
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Kerala High Court
G. Ramakrishna Pillai vs J. Vijayakumari Amma And Ors.
Bench: U Bhat, P Krishnamoorthy
JUDGMENT
Bhat, J.
1. The common appellant in the two appeals is the husband of respondent in M.F.A. No. 883 of 1986, who is the first respondent in A. S. No. 461 of 1986 and is the father of respondents 2 and 3 in the latter appeal. He filed a petition before the Sub Court, Kottarakkara seeking decree for restitution of conjugal rights against his wife Under Section 9 of the Hindu Marriage Act. Petition was contested and dismissed. Wife and daughters filed a suit in the same court seeking decree for arrears of maintenance for three years and for future maintenance against him. The suit was contested but decreed. The decrees in the two cases are now challenged by the appellant.
2. The spouses belong to the Hindu Nair community. They were married on 12-9-1969. They lived together for a short while (either for a few days or for a few weeks) in the house of the husband's mother and thereafter shifted residence to the house allotted to the wife under the family partition deed and in which her mother has right of residence. Two children were born in the marriage; in 1983-84 they were studying in the 9th and 5th standard respectively. We are told that the elder daughter is now studying in college. Husband is working as a teacher in a government school. In or about 1983 the husband built a house in his own property. He sent a registered notice in 1983 to the wife calling upon her to go over and reside with him. She sent a reply dt. 17-8-1983 (Ext. A3 in the O.P.) resisting his claim and alleging neglect, desertion and cruelty on his part. These are the admitted facts.
3. We will now refer to the disputed contentions. According to the husband they shifted to the wife's house on account of the pressure of the wife's mother's brothers and in that house he was not treated well by his mother-in-law and brothers-in-law as they wanted him to leave the house. Being unable to bear this situation he left his wife's house in 1983 and thereafter constructed his house and orally requested his wife to live with him. He asserted that after 1983 he was paying some money into the hands of his elder daughter when he used to see her outside the house. Admittedly he has not paid any maintenance to the wife and second daughter. He has also no specific case that while he was in the wife's house he was meeting the household expenditure. The wife on the other hand would contend that they shifted the residence to her own house on the insistence of her husband. He was beating and ill-treating her. One year after the birth of the first child he left her and started leading immoral life. He returned two years later and she accepted him. Thereafter second child was born, but the beating and ill-treatment continued. On 27-9-1976 she went to the house of her brother to attend funeral of his brother-in-law, with the consent of her husband. When she returned she was beaten by her husband who left the house and again resumed his immoral life. He has been guilty of desertion. There has been no ill-treatment or intolerable situation created by her mother or brothers. They were not living with her. She and her children were carrying on with the help of her mother and brothers. Petition is devoid of bona fides and has been filed after unreasonable delay. She is afraid of being done away with by him.
4. The trial court held that the husband had withdrawn from the society of the wife and not vice versa, that he left her house on 27-9-1976 and not on 26-1-1983 and failed to maintain his wife and children and neglected and deserted her. The court also held that the delay in filing the petition for restitution of conjugal rights was unreasonable and improper. The court took the view that there is reasonable excuse for the wife to keep away from the husband and dismissed the petition for restitution of conjugal right. The court below did not uphold the cruelty or immorality set up by the wife. In the suit the court held that there was justification for her insistence on residing separately from the husband, that he failed to maintain them from 1976 or to pay any maintenance for them and accordingly granted decree as prayed for.
4A. Learned counsel for the appellant contended that the view of the trial court that the husband had withdrawn from the society of the wife by leaving her house is untenable as he is not compelled by law to live in the wife's house and he constructed his own house and invited the wife to reside with him but she refused to do so though in law she is expected to reside with him in the place of his choice. Learned counsel also contended that the wife and not the husband is guilty of desertion and the evidence would make out only a case of separation between the spouses and not desertion on the part of the husband. Learned counsel also sought to challenge the finding of the trial court that husband left the wife's house in 1976 and not in 1983 and contended that there was no delay in filing the petition for restitution of conjugal rights. According to learned counsel wife had no right to separate maintenance after refusing to follow her husband. Learned counsel while admitting right to maintenance of the children contended that the quantum awarded is excessive. According to learned counsel, for past maintenance a lower rate ought to have been adopted.
5. Before dealing with the evidence and circumstances of the case it is necessary to appreciate the principles of law governing a case like this. Restitution is claimed by virtue of Section 9 of the Hindu Marriage Act. The Section reads thus:
"9. Restitution of conjugal rights. When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the Court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.
Explanation : 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."
We notice that the explanation was added by the Marriage Laws Amendment Act 68 of 1976. By the Amendment Act Sub-section (2) of Section 9 was omitted. Sub-section (2) reads as follows:
"Nothing shall 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."
A decree Under Section 9 or the other provisions of the Act can be passed only in accordance with the provisions of Section 23 of the Act. Sub-section (1) of Section 23 reads thus:
"23. Decree in proceedings (1) In any proceeding under this Act, whether defended or not, if the Court is satisfied that --
a) any of the grounds for granting relief exists and the petitioner (except in cases where the relief is sought by him on the ground specified in Sub-clause (a), Sub-clause (b) or Sub-clause (c) of Clause (ii) of Section 5) is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and
b) where the ground of the petition is the ground specified in Clause (i) of Sub-section (1) of Section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty, and
bb) when a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence; and
c)the petition (not being a petition presented under Section 11) is not presented or prosecuted in collusion with the respondent, and
d) there has not been any unnecessary or improper delay in instituting the proceedings, and
e) there is no other legal ground by way relief should not be granted, then, and in such a case, but not otherwise, the court shall decree such relief accordingly."
6. When one of the spouses had with
drawn from the society of the other and such
withdrawal is without reasonable excuse, the
aggrieved party has a right to seek decree for
restitution of conjugal rights. In order that a
decree be granted the court has to be satisfied
of the truth of the statements made in the
petition. The court should be further satisfied
that there is no legal ground why the application should not be granted. "Reasonable
excuse contemplated in Section 9 has not been
define in the Act. As the Section originally
stood, It provided that the defence to a
petition of restitution of conjugal rights can
only be in the form of a contention which
constitutes ground for judicial separation
Under Section 10 or for nullity of marriage under Section 11 or for divorce Under Section 13. This was the
provision in the original Sub-section (2) of Section9.
This provision led to a difference of opinion
among some of the High Courts as to whether
there could be a defence which would not
constitute an adequate ground for decree Under Section
10, 11 or 13. The controversy has been set at
rest by deleting Sub-section (2). A ground which
is adequate under any of these Sections can
always be raised as a defence in a petition Under Section
9, but the defence cannot be restricted to such
ground. Any situation which constitutes reasonable excuse would be a sufficient defence
Under Section 9, Reasonable excuse must be grave and
weighty or convening though it may fall short
of constituting a matrimonial offence. A
similar view has been taken by this court
considering Sections 32 and 33 of the Divorce Act.
See Annie Thomas v. Pathrose (1988) 2 Ker
LT 237 where Paripoornan, I speaking for
the bench observed :
"The scope of the expression "reasonable excuse" occurring in Section 32, is not restricted to the grounds or defence specified in Section 33 of the Act for answering a petition for restitution of conjugal rights. Excuses other than the one envisaged by Section 33 of the Act can also be relied on by the Court in refusing the relief under Section 32 of the Act.:....................
What is "reasonable excuse" depends upon the facts and circumstances of each case. "Reasonable excuse" should be "just excuse" or "rational excuse". It must be sufficiently weighty and convincing. It should be more than a mere whim. It heed not be one of the grounds falling under Section 33 of the Act. It can even be distinct from the matrimonial offence envisaged by Section 33 of the Act. All the same, "reasonable excuse" means that it should be in accord with reason, just and fair, in all the facts and circumstances of the case."
We may notice in this connection the observation of Sarkaria, J. (as he then was) in Sadhu Singh Balwant Singh v. Jagdish Kaur Sadhu Singh AIR 1969 Punj & Har 139 where Section 9 of the Hindu Marriage Act was dealt with (at p. 141 of AIR): - "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."
7. In a proceeding Under Section 9 it is for the petitioner to satisfy the court about the truth of the averments which constitute ground for decree. He must satisfy the court that the wife has withdrawn from his society and once that is shown it is for the wife to show that there has been reasonable excuse for withdrawal from the society. Petitioner also must satisfy, the court that none of the situations contemplated in Section 23(1) exists in the case. Section 23(1)(d) states that if the court is satisfied that there has not been any unnecessary or improper delay in instituting the proceeding the court can grant the relief. Where there is delay in the institution of the proceeding petitioner has to satisfy the court that such delay is not unnecessary or improper. Since the court is dealing with matrimonial offence, the court must be satisfied about the bona fides of the petitioner and his sincerity in demanding restitution. We arc in agreement with the following observations of Kochuthommen, J. (as he then was) speaking for the bench in Radha v. Appu 1986 Ker LT 1334:
"..........an order for restitution of conjugal rights cannot be had for the mere asking of it. The husband must show that he has a bona fide case, his allegations are true, and there is no ground why his application should not be granted. The burden is indeed upon him. But
once he has discharged that onus, it would
then shift to the wife to show that she has
reasonable excuse to withdraw from the
society of the husband." .
8. It is necessary to consider the aspect of unreasonable or improper delay in view of the fact that according to the trial court there has been such delay on the part of the husband in approaching the court. We notice that such delay is not an absolute but only discretionary bar under the English Law and the Divorce Act 1869. But Under Section 23(1)(d) of the Hindu Marriage Act it is an absolute bar. Where there is delay petitioner has to come forward with the explanation for the delay and satisfy the court that the explanation is reasonable. Then and then only the court can hold that the, delay is not unnecessary or improper. At the same time it is not any and every delay which will be of consequence. The basis of the rule is that delay is material factor because if unexplained it may lead to the inference that there was collusion between the parties, or acquiescence in the injury or indifference to the same or some wrong motive for seeking relief after slumbering over the matter in sufficient comfort for an inordinate period after the ground for relief had arisen. See page 866 of the Principles of Hindu Law by Mulla 15th Edn. Mere delay by itself is not fatal. It is however a significant factor in testing the sincerity of the complaining spouse, as it may indicate that sense of injury is wanting. In appreciating this aspect the court cannot ignore the conditions of the society in which the parties lived and the traditions of the family to which they belong. Unreasonable is an expression elastic enough to comprehend all the facts, features and circumstances of the case, including the status of the parties, the nature of the matrimonial offence and the sex of the petitioner. See N. R. Raghavachari's Hindu Law, Eighth Edn. at page 742.
9. Since the spouses complained of desertion by each other and the trial court has held that the husband has deserted the wife, it is necessary to consider the meaning and connotation of the expression "desertion". Desertion is a specific ground for petition for divorce Under Section 13 of the Hindu Marriage Act. Section 13(1)(i) refers to the spouse deserting the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. Explanation to Section 13(1) reads thus : "In this sub-section, the expression "desertion" means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly."
10. The above provision also does not explain the meaning of the expression "desertion". This aspect has been considered elaborately in Bipinchandra Jaisinghbai Shah v. Prabhavati AIR 1957 SC 176. The court quoted with approval the following definition found in Rayden on Divorce (at p. 182 of AIR):
"Desertion is the separation of one spouse from the other, with an intention on the part of the deserting spouse of bringing cohabitation permanently to an end without reason-able cause and without the consent of the other spouse; but the physical act of departure by one spouse does not necessarily make that spouse the deserting party.
The court also quoted with 'approval the following passage from Halsbury's Law of England (3rd Edn.):
"In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause. It is a total repudiation of the obligations of marriage.
Desertion is not the withdrawal from a place but from a state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state; the state of things may usually be termed for short "the home"............
The person who actually withdraws from cohabitation is not necessarily the deserting party."
The Supreme Court observed (at p. 183 of AIR):
"Thus the quality of permanence is one of the essential elements which differentiates desertion from wilful separation, if a spouse abandons the other spouse in a state of temporary passion, for example, anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion. For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned :(1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid....
....... Desertion is a matter of inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If, in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi........ if a deserting spouse takes advantage of the locus penitential thus provided by law and decides to come back to the deserted spouse by a bona fide offer of resuming the matrimonial home with all the implications of marital life, before the statutory period is out or even after the lapse of that period, unless proceedings for divorce have been commenced, desertion comes to an end and if the deserted spouse unreasonably refuses to offer, the latter may be in desertion and not the former."
This decision has been followed by a larger bench of the Supreme Court in Lachman Utamchand Kirpalani v. Meena AIR 1964 SC 40. See also Indira v. Kumaran 1981 Ker LT 739 : (AIR 1982 Ker 78) and Narayanan v. Sreedevi (1989) I Ker LT 509.
11. In Section 13(1)(ib) concept of desertion has a wider connotation in view of the explanation referred to above. The explanation states that desertion means desertion without reasonable cause and without the consent or against the wish of such party includes wilful neglect of the petitioner by the other party to the marriage. Wilful neglect is seen to spell out animus deserendi.
12. Admittedly on the date of the petition spouses were living apart. It is necessary to consider the time of separation and decide whether it was in 1976 as contended by the wife or in 1983 as contended by the husband. Spouses gave evidence in support of each other's contention. Husband examined his elder brother and wife examined two witnesses. The oral evidence appears to be wholly interested. Therefore the evidence has to be tested in the light of other circumstances. Learned counsel for the appellant would rely on Ext. A said to be a copy of the ration card declaration in the name of the petitioner and Ext. A2 voters list. According to Ext. Al, the husband, wife and the two children were living in one house. Declaration does not bear any date. It does not purport to bear the signature of the husband. Therefore no reliance can be placed on it. Ext. A2 is the copy of the voters list of 1983, which shows the husband and the wife as being voters in the same house. Husband is a government school teacher. According to the wife enumeration was made by his friends. We do not think the voters list can have much evidentiary value since even admittedly husband left the house in 1983 though he was not prepared to indicate the exact date.
13. There is no dispute that the wife had certain gold jewellery of her own amounting to 15 to 16 sovereigns. It is also admitted that at the time of the marriage husband had presented her jewellery of 5 1/2 sovereigns. There is no dispute that husband pledged some of these ornaments in State Bank of Travancore and his younger brother also made a pledge. Ext. B1 series are the pledge cards. Ext. B1 pledge was on 1-3-1976. Ext. B1(a)pledge was on 3-11-1975 and Ext. B1(b) pledge was on 3-t 1-1975. Admittedly in those days husband was living in the wife's house. It is further admitted that the husband redeemed the ornaments on 3-11-1976. According to the wife's case two months prior to that date husband had left her while according to the husband he stayed with the wife for about seven years after redemption. Husband examined as P.W. 1 did not remember whether he had redeemed using the pledge cards or by giving declaration that he had lost the cards. R.W. 2, an officer of the bank gave evidence that P.W. 1 came to the bank and gave declaration that the pledge cards had been lost and it was on that basis that he was allowed to redeem. P.W. I deposed that he had kept the pledge cards in the table and he thought that his wife had kept them away. He has no case that he questioned his wife about the same. If really at that time he was living in the wife's house he would have searched for the cards or asked his wife to trace them out. The only reason why he could not get at the cards was that he had already left his wife's house abandoning her. He has a case that he returned the gold ornaments to her, a case which appears to be wholly improbable in the light of the fact that he had left her before redemption. He claimed that he got the first child admitted in the first standard in the school. But he was not the person who got her admitted in higher class in another school. These circumstances clearly indicate, as rightly pointed out by the trial court that he must have left her in 1976 as alleged by her. If really he had continued to reside with her from 1976 to 1983 it is inconceivable that he would not be in a position to preduce some supporting documentary evidence. We, therefore, agree with the trial court that he left her and her house in 1976.
14. The question is whether the act of the husband in leaving wife's house would constitute desertion? According to learned counsel for the appellant the matrimonial home is the one to be chosen by the husband and the wife has to follow him. Appellant merely left his wife's house and wife had a duty to follow him. We do not understand that this proposition is of absolute and invariable application, irrespective of the facts and circumstances of a given case.
15. In Ponnambalam v. Saraswathi AIR 1957 Mad 693 the Madras High Court states (at p. 694 of AIR):
".........It is now settled law in England, America and India, that a wife is entitled to insist that she should not be exposed to the unpleasantness of the relatives of her husband and that suitable provisions should be made for her to live with her husband in privacy. The husband no doubt has got the right to choose the domicile for the wife and she should follow him when that domicile is one which is not legitimately repugnant to her and injurious to her health etc. In all these matters as pointed out in Simon's Edition of Halsbury's Laws of England, the casting vote is not with the husband or the wife but it is a matter which has got to be decided amicably between them; at times the husband may have to choose between his parents, mother or his wife. He must come to his own conclusion in his own mind and must not insist upon incompatible parties like his own wife and mother living together and making life a hell for them."
On the facts it was held that the wife could not be directed with the husband's step-mother. The above passage has been quoted with approval by a Division Bench of this Court in Kanthimathi v. Parameswara Iyer 1974 Ker LT 889: (AIR 1974 Ker 124) In Kanthimath's case dispute arose on account of the fact that the parents of the husband were living with him. The Division Bench observed (at p. 127 of AIR): "Times are yet to come in our country when aged parents could be shoved off to infirmities, be it that such days are signs of progress as some claim to be or retrogression as some others view it. In proceedings for the restitution of conjugal rights, we are to be guided by the fundamental and basic rule of matrimonial law that it is the right of each spouse to have the society and comfort, consortium, of the other. The husband is entitled to it; equally the wife. So long as the residence of the aged parents of the husband under the same roof with him is not provocative of creating circumstances grave enough to subvert the wife's right to consortium of her husband, we think, we cannot accept the arguments advanced by the learned counsel for the appellant regarding her right to separate residence with her husband away from his parents."
Ordinarily the husband is entitled to determine which should be the matrimonial home; naturally in deciding the same he takes into consideration the views of the wife also and not ignoring those views. He will not choose a matrimonial home where there may be, as observed in Kanthimathi's case 1974 Ker LT 889 : (AIR 1974 Ker 124) "circumstances grave enough to subvert the wife's right to consortium of her husband". Therefore even though ordinarily it is for the husband to choose the matrimonial home that right is not absolute and is circumscribed by certain limitations. In view of the evidence and facts of the case, it is unnecessary for us to consider what those limitations are.
16. The marriage took place in 1969. Except for a few weeks immediately after the marriage for seven years the husband voluntarily resided in the wife's house. He has a contention that the wife's mother and brothers were also living there. Even going by Ext. A1 it is clear that husband, wife and daughters are the only inmates of the house. Even in evidence he did not explain what exactly was the situation which allegedly forced him out of the house. It is not sufficient that he concludes that the situation became unbearable. The court should be in a position to arrive at such a conclusion. He did not place any facts before the trial court to enable it to arrive at such a conclusion. The only proved fact is that all on a sudden in 1976 he left the wife's house, which was the matrimonial home agreed to by him. He has no case that when he left her house he invited her or children to accompany him. In fact on that day he had no house of his own. His evidence would suggest that his idea was he could construct a house and then the wife should join him. Going by his own case construction was made only somewhere in 1983, What was he doing during the period between 1976 to 1983. He has no case that he invited his wife or expected his wife to go over arid live with him. In fact he rendered himself unable to. put forward such a case by contending that he left the mutually chosen matrimonial home only in 1983. Before he left his wife he and his brother had pledged her jewellery in a Bank. After he left her he redeemed the jewellery. There is no acceptable evidence to show that he returned the jewellery to her. Admittedly he did not maintain his wife nor paid her any money for maintenance during this period. Admittedly he did not attempt to look after his children. In fact during the period of seven years he made no attempt to have any contact with the wife or children. It was as if he left her for good. It is true that the wife also did not make any attempt to join him. When the husband leaves her all on a sudden and fails to make any contact with her all difficult to expect her to go over to him. She must have been waiting patiently in her own house for the husband to return. The husband claims that he attempted to get her back by sending his mother and brother (P.W. 2) and sending the Karayogam Secretary to her. The Karayogam Secretary has not been examined. Brother could only be regarded as an interested witness. These alleged attempts took place only in 1983 in which year he sent a registered notice and filed the restitution petition. All these circumstances arc sufficient to satisfy the court that when he left his wife and subsequently he had animus deserendi. The trial court was justified in holding that it was the husband who deserted the wife and not vice versa. This constitutes sufficient excuse for the wife to withdraw from the society of the husband, assuming that she did so.
17. The husband came to court with the specific case that he was compelled to leave his wife's house in 1983. The trial court has found that he left her house in 1976 and not in 1983 and we confirm the finding. He ought to have filed the petition for restitution of conjugal right within a reasonable period after 1976. He did not do so. He waited for seven long years before coming to Court. He had no explanation for the delay in coming to Court. Delay may be of different kinds. There is delay on account of optimism expecting the wife to follow him. There may be delay on account of poverty or other reasons discouraging litigation. There may be delay caused by sentimental feelings against approaching the Court. There may be delay of forbearance. In the absence of any sort of explanation on the part of the husband, delay in this case has to be regarded as unnecessary and improper. That being so, decree for restitution could not be granted in view of Section23(1)(d) of the Hindu Marriage Ac. We therefore find no ground to interfere with the dismissal of the petition for restitution of conjugal rights.
18. In view of the above findings it must necessarily follow that the wife has a right to separate maintenance. Children are also entitled to maintenance from the father. The main dispute appears to be regarding the quantum of maintenance awarded. The claim in the suit was for arrears of maintenance and future maintenance at the rate of Rs. 250/-per month for the wife and Rs. 300/ - per month for each of the daughters. Husband has 1,37 acres of land containing coconut trees and another plot of land measuring 33 cents. Income of this property, according to the plaint is Rs. 10,000/- per year. Income of the land mentioned in the written statement is Rs. 1,000/- per year. Actually income must be somewhere in between the two extreme extremities. He is a Government High School Teacher admittedly getting though the take home pay is Rs. 1000/- per month. Wife has some property with meagre income of Rs. 100/- per month from land. The Court below has awarded in all a sum of Rs. 850/-per month for the wife and children. Husband claims that he has been taking food in hotels. Taking all the facts and circumstances into consideration we are of the opinion that the rate of maintenance adopted by the trial Court is excessive. Considering the fact that the wife has some income of her own, a sum of Rs. 150/- per month for her appears to be eminently reasonable and Rs. 225/- per month would be the proper rate to be adopted for each of the children.
19. Learned counsel for the appellant submitted that in regard to arrears of maintenance a lesser rate should be adopted, relying on the decision in Laxmi v. Krishna, AIR 1968 Mys 288 where it is observed that (at p. 292 of AIR), "The award of arrears at the same rate as future maintenance would cause undue hardship to the person who is liable to pay maintenance and would make available to the person who is entitled to the maintenance a fund which could be constructed only to the great detriment of the person liable to pay
maintenance."
Sukumaran, J. in E. V. Kunshimariam v. Ooramveettil Mammy, AIR 1985 Ker 239 declined to follow the above decision. In the words of His Lordship (at p. 241 of AIR):
"Where is the justice or equity in reducing the rate of maintenance payable to the helpless woman and a minor girl, when the party morally and legally liable for the same has been contumacious in his neglect in prompt payments? I can discern none. The person on whom a duty to so pay the maintenance was cast had the capacity all the while for making the payment. It was sheer cruelty on his part to have withheld the amount from a starving wife and a suffering child. The mere fact that the parents of the unfortunate woman had somehow supported her, and her new born baby, is no reason whatever for the defendant to claim, with any sense of grace, any indulgence whatever. No known principles of law would justify helping a person of such diabolic disposition."
The decision also survives the earlier decisions of various Courts on the point and lays down the correct principle as follows :
"If the maintenance claimed is a legal right and if the claim is within the period of limitation, ordinarily the party entitled to get it must get it in full measure from the party who defaults the payment."
relying on the decision in Eluri Krishnamoorthy v. Eluri Suryakantamma, AIR 1955 Andh Pra. 5. We do not understand the learned Judge as laying down a principle that under no circumstances can the rate be reduced in regard to arrears of maintenance. Where the maintenance claimed is a legal right and the claim is within the period of limitation, ordinarily plaintiff is entitled to it in full measure from the party who defaults the payment. There may be exceptional circumstances in a given case which may weigh with the court in reducing the rate of maintenance in regard to arrears. In the absence of such circumstances and ordinarily there is no justification to cut down the rate. We have adverted to the background in this case and the conduct of the husband. In the facts and circumstances already referred to, we find no reason to differentiate between the rate to be adapted for past maintenance and that for future maintenance.
20. In the result, we dismiss M.F.A. No. 883 of 1986 but without costs. We reduce the rate of maintenance adopted by the trial Court in O.S. No. 26 of 1984 from Rs. 250/-per month for the wife and Rs. 300/- per month for each of the children to Rs. 150/-per month for the wife and Rs. 225/- per month for each of the children. This shall apply for past maintenance as well as future maintenance. The decree shall be modified accordingly. A.S. No. 461 of 1986 is allowed to the above extent. We direct the parties to bear their costs in the appeal.
Krishnamoorthy, J.
21. While I agree with the conclusions and the decree proposed by my learned brother Bhat, J. I wish to add a few words of my own on the question as to whether there is reasonable excuse for the wife to withdraw from the society of the husband.
22. Section 23A of the Hindu Marriage Act provides some of the defences open to a respondent in a proceeding of this nature which reads as follows:
"23 A. Relief for respondent in divorce and other proceedings :-- In any proceeding for divorce or judicial separation or restitution of conjugal rights, the respondent may not only oppose the relief sought on the ground of petitioner's adultery, cruelty or desertion, but also make a counter-claim for any relief under this Act on that ground; and if the petitioner's adultery, cruelty or desertion is proved, the court may give to the respondent any relief under this Act to which he or she would have been entitled if he or she had presented a petition seeking such relief on that ground."
23. Reading Sections 9 and 23A of the Hindu Marriage Act together, it is clear that desertion by the petitioner is a defence in an action under section 9 and that it will constitute a reasonable excuse for the spouse to withdraw from the society of the other. But the contention of the counsel for the husband is that it is the privilege of the husband to require the wife to live with him wherever he may choose to live and the fact of his separate living will not constitute desertion. In support of the above contention he relied on the decision of the Andhra Pradesh High Court in Pothuraju v. V. Radha, AIR 1965 Andh Pra 407 and the dictum laid down in para 10 which is as follows: "Be that as it may, it is now well established that it is the right of the husband to require his wife to live with him wherever he may choose to reside and that courts cannot deprive him of his right, except under special circumstances which absolve the wife from that duty." (Underlining is mine)
24. It is true that in normal circumstances it is the duty of the wife to live with the husband and only in exceptional cases she can demand the contra. But in this case on an understanding between the spouses they were living in the wife's house only till 1976 and not till 1983 as pleaded by the husband. All on a sudden he left the company of the wife for no justifiable reason. He had no place to offer to the wife to come and stay till 1983 when he constructed a house of his own. There is no evidence to show that he had required his wife to come and stay with him before 1983 in any house which he could have procured had he intended to do so. Not only that, he had not made any enquiries or arrangements for the well being of his wife and children. He had not taken any interest in the education of his children in spite of the fact that he is a teacher in a high school. He has completely failed to discharge any of his marital obligation for no reason. In view of the above facts it can safely be concluded that the husband left the matrimonial home in 1976 with an intention of bringing cohabitation permanently to an end and that he is guilty of desertion. The sudden change of attitude and the superior claim as a husband made in 1983 is not at all bona fide and the wife is perfectly justified in not agreeing to join him at present
