Judgment 1. THE hearing of this appeal was concluded on 19. 5. 1970. At the conclusion of the hearing we expressed our desire to effect a reconciliation if that was possible and we also requested both the husband and the wife to be present in Court on a date that may be suitable to them. On the suggestion of the parties this date was fixed for the presence of the husband and the wife in Court and also for delivery of judgment, in case no settlement was arrived at. Both the husband and the wife appeared in court today and we made attempts to effect reconciliation between the parties but that has failed. After that the learned Advocates made further submissions on the points of law and also on facts. 2. THIS is an appeal by the husband against the judgment and decree dismissing his application for restitution of conjugal rights against the wife. The marriage took place on August 6, 1962, according to Hindu rites. After marriage, according to the husband, the couple lived for about a month at mysore; the husband, a doctor, was serving there in the railways. She was brought to her father's place at Lake town but was unwilling to return to mysore. She was taken back to Mysore on persuasion against her wish and soon after her father brought back to his residence at Lake Town in the suburb of Calcutta. The husband in his agony had to resign and came back to the wife at Lake Town to persuade her to live with him in a peaceful matrimonial home. He secured a job at garbeta and took the wife there but even so her stay there was short and she left for her father's place without excuse. Since June 13, 1963 to June 11, 1967, she lived at her father's place away from the husband, who visited her several times to persuade her to live with him but all was in vain. On December 19, 1963, a son was born to her and subsequently a daughter was born to her but all about her was kept secret from the husband. Early in 1967, at the intervention of friends, she came back to the husband's place and stayed there upto December 30, 1967, when she again withdrew from the society of the husband without any excuse. Early in 1967, at the intervention of friends, she came back to the husband's place and stayed there upto December 30, 1967, when she again withdrew from the society of the husband without any excuse. In spite of his attempts she refused to come back. The husband in the said circumstances prayed for a decree for restitution of conjugal rights against the wife. The petition was opposed by the wife who denied the several allegations made in the petition. Her material allegations were that due to the husband's short temper, violent and ill treatment to her, his growing suspicion about her character, she was forced to leave her husband. The husband taunted her lack of beauty and character causing distress in her mind and she was unable to live with him for fear of permanent injury to her and her children. 3. THE husband's present application for a decree for restitution of conjugal rights was filed on February 14, 1968, and the wife, it appears, filed an application on May 20, 1968, for a decree for judicial separation against the husband, basing her case mainly on the husband's desertion as also his cruelty to her, as alleged in her written statement to the husband's petition. This application was contested by the husband who denied that he was guilty of any matrimonial offence. 4. ON the prayer of the husband, both applications were heard analogously and before the learned judge, the parties adduced evidence oral and documentary. The learned Judge held on the application of the wife that though the husband ill-treated the wife before 1967, the same did not amount to legal cruelty and since 1967, no legal cruelty was proved. As to the husband's application, it was found that the wife withdrew herself from the society of the husband for grave and weighty causes and her refusal to return to the husband, even if there was any effort for such return, which was not proved, was justified. Accordingly by the same judgment, both applications were dismissed. The husband preferred the present appeal against the decree dismissing his application while no appeal was preferred by the wife against the decree dismissing her application. Mr. Accordingly by the same judgment, both applications were dismissed. The husband preferred the present appeal against the decree dismissing his application while no appeal was preferred by the wife against the decree dismissing her application. Mr. Apurbadhan Mukherjee, the learned Counsel appearing for the husband appellant, has contended that the learned Judge was in error in not allowing the petition of the husband when the wife's defence to resist the same was found untenable. It was contended that the only defence available to the wife against the husband's petition was the grounds for judicial separation or for nullity of marriage or for divorce. As no matrimonial offence by the husband warranting reliefs on the above grounds was established, the husband would be entitled as of right to a decree for restitution of conjugal rights on his petition. In view of the dismissal of the wife's petition for judicial separation and of his findings that no legal cruelty or desertion on the part of the husband was established, the learned judge should have allowed the husband's petition. Mr. Dhruba Kumar Mukherjee, the learned Counsel for the wife respondent has disputed the above contentions and has submitted that the grounds for refusing restitution of conjugal rights in Sub-section (2) of Section 9 of the Hindu Marriage Act, 1955, hereinafter referred to as the said act, is' not exhaustive and even if the wife fails to establish matrimonial offence on the part of the husband, the court in every case, has to consider whether the wife has withdrawn from the husband without reasonable excuse. If the wife has a reasonable excuse for such withdrawal, as here, the Court would be entitled to refuse the decree for restitution of conjugal rights prayed for by the husband. 5. BEFORE we consider the merits of the submissions, the provisions of section 9 of the said Act as set out below, may be considered 9 (1) "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. (2) 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". The point for consideration is whether in cases where a spouse has failed to establish that the other spouse is guilty of a matrimonial offence warranting a judicial separation or nullity of marriage or divorce, can such spouse resist an action for restitution of conjugal rights. 6. IN (1) Timmins v. Timmins, 1952-II All. E. R. 187, the Court of appeal by a majority decision held that though the husband was not guilty of cruelty, still his conduct was a grave and weighty matter which gave the wife good cause for leaving the husband and prevented him from obtaining a decree of restitution of conjugal rights unless and until he satisfied the court that if she returned to him. he would behave with conjugal kindness, and therefore, was a defence to the husband's suit for restitution. The following observation in (2) Mackenzie v. Mackenzie (1895) A. C. 384 at 390, though under Scottish law was quoted with approval by Denning L. J. in his judgment in Timmins case : 'take the case of a husband who has heaped insults upon his wife, but has just stopped short of that which the law regards as savitia or cruelty; can he when his own misconduct has led wife to separate herself from him, come into Court, and avoiding his misdeeds, insist that it is bound to grant him a decree for adherence ?" It may, however, be noted that in the matrimonial law in England there is no provision similar to those in Section 9 (2) of the hindu Marriage Act. In (3) Musst. Gurdev Kaur v. Sarwan Singh, AIR 1959 Punjab 162, grover J. observed : "although Subsection (2) of Section 9 of the Hindu. Marriage Act confines pleas in defence only to those grounds which can be taken in Sections 10, 12 and 13 of the act, Sub-section (1) itself lays down certain conditions, which must be fulfilled before a decree can be granted." the same principle was followed in (4) Gurcharan Singh v. Sm. Waryam kaur, AIR 1960 Punjab 422. In (5)Smt. Mango v. Prem Chand AIR 1982 all. Waryam kaur, AIR 1960 Punjab 422. In (5)Smt. Mango v. Prem Chand AIR 1982 all. 447 the same principle was again followed and it was held that conditions of Section 9 (1) must be fulfilled before a decree for conjugal rights could be decreed. In (6) Putul Debi and another v. Gopi Mondal, AIR 1963 patna 93, the Court observed that having regard to the purity of matrimonial relations, no case of greater mental distress and real apprehension of harm and injury could be conceived than the husband's suspicion of faithlessness and unchastity on the part of the wife, if there is a legitimate excuse for refusal to live with the husband, the court will be justified in refusing to decree restitution of conjugal rights even when cruelty is not established. 7. IN (7) Sh'akuntalabai v. Baburao, air 1963 M. P. 10 it was observed by Krishnan J. as follows : ". . . . the very fact that the legislature has thought fit on the one hand to set down the appropriate defences in Sub-section (2) and at the same time to use the words "reasonable excuse" in Sub-section (1) shows that the latter means something more than the former. In principle, therefore, it is open to the person resisting the prayer for restitution of conjugal rights to invite the court to consider the fact that though the petitioner may not have done something equivalent to a matrimonial offence of the nature set out in Subsection (2) still his character and antecedents are such that it would be inhumane to grant restitution". 8. IN (8) Rebarani v. Ashit, AIR 1965 Calcutta 162, the Court was concerned with an application by the husband for restitution of conjugal rights which was defended by the wife on grounds of cruelty. As the cruelty by the husband was not established, the trial court granted the husband a decree for restitution of conjugal rights. On appeal by the wife, P. N. Mookerjee, j. speaking for the Court, observed as follows:- "sub-section (2) deals with wife's defences to the husband's action, if it was otherwise entitled to succeed under Sub-section (1)". Even if the wife's defence failed, the learned trial judge "seems to have fallen into an error in not paying attention to the requirements of Sub-section (1) of Section 9 which would be essential to entitle the husband to a decree. . . . Even if the wife's defence failed, the learned trial judge "seems to have fallen into an error in not paying attention to the requirements of Sub-section (1) of Section 9 which would be essential to entitle the husband to a decree. . . . If that evidence (husband's uncorroborated testimony about his attempts to bring back the wife) be not accepted or accepted as sufficient to prove that the husband made attempts to bring back the wife, his case that the wife was staying away without reasonable cause, which it is incumbent upon him to prove under Sub-section (1) of Section 9 would fail". The ratio decidendi of the cases referred to above is that even if the defences to an application for restitution of conjugal rights fail, under section 9 (1) of the said Act, the petitioner to succeed must satisfy the Court that the conditions therein have been complied with. There must be firstly, the factum of withdrawal of the wife or husband from the society of the other without reasonable cause; the court must be satisfied that the statements made in the petition are true and that there is no legal ground why the application should not be granted. It is obvious that "reasonable excuse" in Sub-section (1) is not co-existensive with the grounds mentioned in sub-section (2), but of wider scope. Accordingly the petitioning spouse, to succeed, must disprove the defence, if any, that he or she is guilty of any matrimonial offence warranting judicial separation or nullity of marriage or divorce; even if there is no defence or the defence fails, it must also be established by the petitioner that the other spouse has withdrawn from his or her society without reasonable cause. Only and if the above conditions are satisfied, irrespective of the defence that may not exist, the petitioner will be entitled to a decree for restitution of conjugal rights. 9. THERE is no dispute that the wife has lastly withdrawn from the society of the husband from about December 30, 1967. The wife in her written statement has complained that throughout the married life the petitioner husband had abused and reviled the wife, taunted her character and lack of beauty and such treatment caused considerable sufferings in her mind, and she was apprehensive of permanent injury. The wife in her written statement has complained that throughout the married life the petitioner husband had abused and reviled the wife, taunted her character and lack of beauty and such treatment caused considerable sufferings in her mind, and she was apprehensive of permanent injury. We have also seen some letters admittedly written by the husband to the wife exhibits B (3) dated October 25, 1965 where there are serious insinuations and direct allegations about the character of the wife. Tie husband suspected the chastity of the wife and required positive proof of her that the children born were his and till the wife succeeded to convince the husband that the wife was chaste and the children were his, there would be no change in the state of things, i. e. not having a matrimonial home. In his letter of November 11, 1965 (exhibit B (l) again he reiterated his conviction about the unchaste character of the wife, though he was of such forgiving nature as to live with her if she behaved properly and was co-operating. In his letter of October 18, 1966 (exhibit B (2), he threatened the wife that he would decide his future coarse of action as she failed during last two years to convince that the children are his. The wife in all these letters was addressed in her maiden name. 10. THE wife in her evidence stated that her husband had a 'suspicion' mania and the allegations made in the letter, which were unfounded, caused distress in her mind. The husband in his evidence undoubtedly stated that he never suspected his wife and the letters were written in anger. It he really never suspected his wife he failed to give any explanation to his said letters where he persisted expressing his suspicion about the character of the wife being unchaste and the children being his and the same situation continued according to the wife, even after she went to the husband's place in Lake Town in June, 12|13, 1967. If the letters were written in anger, we fail to find either in pleadings in his present petition or in his evidence that the husband ever recanted or withdrew his previous allegations about the character of the wife, which in the absence of proof, must be held to be baseless or that the husband was ever remorseful for such baseless and mean allegations. It is well settled that cruelty may be physical as also mental and as was also held in (9) Bejoy v. Aloka, AIR 19c9 Calcutta 477-74 CWN 624, in which I was a party, husband inflicts the worst form of cruelty upon the wife, when he, without reason, calls the wife unchaste and questions the paternity of his children. The stigmatisation of the wife's character was persisted upon even after June 1967 and was never withdrawn nor the husband appeared to be remorseful for his conduct during the course of the proceeding in the trial court. I am of opinion that the husband was guilty of abject cruelty to the wife and disagree with the findings of the trial court on this issue. Assuming that there was no cruelty by the husband on the wife, even so the husband, to succeed, must prove that the wife stayed away without reasonable excuse. Relationship between married spouses should be permeated by an atmosphere of purity, each having respect for the other and in the Hindu society marriage is a sacrament. If the wife is conscious that her husband has no faith in her character, and, even though the suspicions have no basis, the husband. does not recant the wild allegations or is not remorseful of his action in suspecting the wife's fidelity but persists in stigmatising the character of the wife, in my opinion, it will be inhumane for a court of law to compel the wife, on penalty of 0 possible forfeiture of matrimonial rights, to live in a matrimonial home where she will have no status of dignity and honour and there cannot be a worse form of mental torture to the wife. If in the circumstances, the wife keeps away from the society of the husband it cannot be said that such withdrawal was without any reasonable excuse. On a consideration of the circumstances, it cannot be said that the husband has been able to establish that the wife's withdrawal was without reasonable excuse; on the contrary. I hold that there was sufficient, grave and weighty reasons for her to keep away from the husband. 11. IN the circumstances, the application of the husband, it must be held, was rightly dismissed by the learned Judge. It is accordingly ordered that the appeal be and is hereby dismissed with costs, hearing fee hearing assessed at five gold mohurs. I hold that there was sufficient, grave and weighty reasons for her to keep away from the husband. 11. IN the circumstances, the application of the husband, it must be held, was rightly dismissed by the learned Judge. It is accordingly ordered that the appeal be and is hereby dismissed with costs, hearing fee hearing assessed at five gold mohurs. S. K. Chakravarti, J. 12. I have heard the judgment just now delivered by my Lord and I agree with the findings arrived at and also the reasons behind the same and concur in the order proposed. But I would like to add a few words. The main points of law which arise in this case are as to whether sub-section (2) of Section 9 controls sub-section (1) as well, or in other words, whether the only grounds which can be set out to oppose claim for restitution of conjugal rights, are the grounds which would be available to the other party if the suit had been one on a ground for a judicial separation or nullity of marriage or for divorce. The second point would be, that, even if the aforesaid question is answered in the affirmative, whether the same had been proved in this case. 13. SO far as the first point is concerned, the decisions of the different high Courts to which my lord has drawn attention, will show that even apart from Sub-section (2), it is for the petitioner to prove that there was absence of reasonable excuse on the part of the other party in withdrawing himself or herself from the society of the petitioner, Vide : (3)Musst. Gurdev Kaur v. Sarwan Singh air 1959 Punjab 162, (4) Gurcharan singh v. Sm. Waryam Kaur, AIR 19 (50 punjab 422, (5) Smt. Mango v. Premchand, AIR 1962 All. 447 , (6) putul debi and Anr. v. Gopi Mondal, AIR 1963 Patna, 93, (7) Shakuntala Bai v. Baburao, AIR 1963 M. P. 10, (8) Re-barani v. Ashit, AIR 1965 Calcutta 162. I would respectfully agree with the principles enunciated in the above decisions and answer the first point in the negative. 14. 447 , (6) putul debi and Anr. v. Gopi Mondal, AIR 1963 Patna, 93, (7) Shakuntala Bai v. Baburao, AIR 1963 M. P. 10, (8) Re-barani v. Ashit, AIR 1965 Calcutta 162. I would respectfully agree with the principles enunciated in the above decisions and answer the first point in the negative. 14. APART from that, even if it be assumed that the respondent is not entitled to urge a ground in the case for restitution of conjugal rights which cannot be a ground for judicial separation or for nullity of marriage or for divorce, still on the evidence in this case, I am also satisfied that the respondent has been able to prove that the petitioner has treated her with such cruelty as to cause a reasonable apprehension in her mind that it would be harmful or injurious for her to live with the husband. The letters written by the husband to the wife have been made exhibits in the case, and a simple reading of the same would leave a very unsavoury taste in the mouth. Even from the very first night that the parties slept together, the husband appears to have got a suspicion in his mind that his wife was not a virgin. In letters after letters he has taunted his wife with it. Two children have been born of the marriage. The petitioner went so far as to call upon his wife to prove that those children were born of his loins. It seems that there was something wrong with the husband. He is a medical practitioner and we cannot understand how he could call upon the wife to prove it. The wife's evidence would show that the husband had the suspicion mania from the very beginning, and though she had given him a chance and had returned to live with him, but his conduct did not improve and he went on as before, and so she had to come back. The cruelty under the Act is not necessarily confined to the physical. As a matter of fact, mental cruelty is more harmful, injurious and disturbing than physical cruelty. Where one party to the marriage has got the suspicion mania he not only creates a hell for himself, but brings down the other party also to it for no faults of her own and nothing could be worse than living together for such a couple. Where one party to the marriage has got the suspicion mania he not only creates a hell for himself, but brings down the other party also to it for no faults of her own and nothing could be worse than living together for such a couple. The husband even went so far as to call the wife a prostitute. Though the wife had read upto the fourth year class before her marriage, the husband considered her to be a girl of little learning. This sort of allegation days in and days out, would certainly make the life of the other parties extremely miserable and in the facts and circumstances of this case I am quite convinced that this amounts to such cruelty as to cause a reasonable apprehension in the mind of the wife that it will be harmful or injurious for her to live with the husband. This ground constituted Clause (b) of Subsection 1 of Section 10, and as such in this case it must be held that the requirements of Section 9 (2) have also been complied with. We do not think that the learned Judge was justified in his appraisal of the evidence in this respect. The marks of physical cruelty may vanish with time or treatment. But; the shafts of mental cruelty remain imbedded in the heart for ever. I am not unmindful of the fact that the suit brought by the wife for judicial separation was dismissed by the learned Judge. In the view we have taken that suit should have been decreed; but as the wife has not appealed against that decree, we must leave the matter where it stands. In the husband's suit, out of which the present appeal has arisen it is for the husband to prove that there was no reasonable excuse on the part of the wife for living apart and as in this suit also we find that there was cruelty which would entitle the wife to a decree for judicial separation; we hold therefore, that the present suit was rightly dismissed. 15. IN the circumstances I agree with my Lord that the appeal should be dismissed with costs.