SREEVALSAN PILLAI v. THANKAMONI AMMA — 1986 DIGILAW 384 (KER)

Judgment :- 1. The petitioner-husband in O.P. (H.M.A.) No. 59 of 1978 of the Sub Court. Quilon, is the appellant in M.F.A. No. 589 of 1981. In Crl. R.P. No. 91 of 1982 he is challenging the order in Crl. R P. No. 94 of 1980 of the Sessions Court, Quilon reversing the order of the Chief Judicial Magistrate, Quilon in M.C. No. 109 of 1979, where he was the counter-petitioner. The husband is hereinafter referred to as the petitioner and the wife as the respondent. The petitioner filed O.P. (H.M.A) No. 59 of 1978 before the Sub Court, Quilon under S.9 of the Hindu Marriage Act for restitution of conjugal rights. The petitioner married the respondent on 20-3-1972. The allegation in the petition was that they lived together in the house of the petitioner till 27-12-1976. A child was born in the wedlock on 18-8-1974. On 29-12-1976 the respondent left his house without his knowledge and consent. The petitioner sent a notice requiring the respondent to come and live with him. She replied raising false contentions. It was under those circumstances that the petition was filed. In the objections filed by the respondent she contended that the petitioner disposed of her ornaments and appropriated the amount. He was cruel to her and often threatened her He also compelled her to mortgage another item of property belonging to her and to give him the proceeds. The petitioner himself took the respondent and child to her house and wanted her brother to withdraw a suit filed by him to set aside a settlement by which properties were allotted to the respondent. Petitioner threatened that until the civil suit is withdrawn, he will not take her back. Thereafter he neglected to maintain her and her child. After examining the evidence, the Sub Court found that the petitioner was cruel towards the respondent and held that the respondent had reasonable excuse to withdraw from the society of the petitioner. 2. Learned counsel for the respondent raised a preliminary objection that the appeal itself is barred by time. His contention is that the application for certified copy of the order was dismissed for non-payment of printing charges. Subsequently that application was restored after 11 months. 2. Learned counsel for the respondent raised a preliminary objection that the appeal itself is barred by time. His contention is that the application for certified copy of the order was dismissed for non-payment of printing charges. Subsequently that application was restored after 11 months. According to learned counsel the period between the dismissal and restoration of the copy application cannot be considered as "time requisite" for getting a copy, within the meaning of S.12 of the Limitation Act. He also relied on Ramabhadra v. Kadiriyasami (AIR 1922 PC 252), Jijibhy N. Surty v. T. S. Chettyar (AIR 1928 PC 103), Parbati v. Bhola (ILR 12 Allahabad 79 FB), Bechi v. Ahsan-Ullah Khan (ILR 12 Allahabad 461 FB), Kishore Chand v. Bahadur (AIR 1936 Lahore 771), Gabriel Christian v. Chandra Mohan (AIR 1946 Patna 45) and State v. Midnapore Commercial Co., (AIR 1978 Calcutta 358 FB). His contention is that'time requisite' means time properly required for obtaining copy. Relying on Ramanuja Ayyangar v. Narayana Ayyangar (ILR 18 Madras 374) and Berumull Sowcar v. Velu Gramany (AIR 1942 Madras 369) the learned counsel for the appellant contended that the court has the power to restore the copy applications. He also relied on the judgment of the Supreme Court in State of UP v. Maharaja Narain (AIR 1968 SC 960) where the court after considering Ramabhadra v. Kadiriyasami (AIR 1922 PC 252) and Jijibhoy N. Surty v. T. S. Chettyar (AIR 1928 PC 103) held as follows: 116. What is deductible under S 12(2) is not the minimum time within which a copy of the order appealed against could have been obtained. It must be remembered that Sub-section (2) of S 12 enlarges the period of limitation prescribed under entry 157 of Schedule I. That section permits the appellant to deduct from the time taken for filing the appeal, the time required for obtaining the copy of the order appealed from and not any lesser period which might have been occupied if the application for copy had been filed at some other date. That section lays no obligation on the appellant to be prompt in bis application for a copy of the order. That section lays no obligation on the appellant to be prompt in bis application for a copy of the order. A plain reading of S.12(2) shows that in computing the period of limitation prescribed for an appeal, the day on which the judgment or order complained of was pronounced and the time taken by the court to make available the copy applied for. have to be excluded. There is no justification for restricting the scope of that provision. (7) If the appellate courts are required to find out in every appeal filed before them the minimum time required for obtaining a copy of the order appealed from, it would be unworkable. In that event every time an appeal is filed, the court not only will have to see whether the appeal is in time on the basis of the information available from the copy of the order filed along with the memorandum of appeal but it must go further and hold an enquiry whether any other copy had been made available to the appellant and if so, what was the time taken by the court to make available that copy. This would lead to a great deal of confusion and enquiries into the alleged laches or dilatoriness in respect not of copies produced with the memorandum of appeal but about other copies which he might have got and used for other purposes with which the court has nothing to do." Therefore the contention that the appeal is barred by time is without merit and the preliminary objection is overruled. 3. Learned counsel for the petitioner submitted that the burden of proof to establish that there is reasonable excuse to withdraw from the society of the other spouse is on the spouse who alleges such reasonable excuse. Whether under S.9 of the Act the petitioner has to prove that the respondent has withdrawn from bis society without reasonable excuse or whether once it is established that the respondent has withdrawn from petitioner's society, the respondent herself is to establish that there is reasonable excuse for her action, was a question which came up for consideration by different Courts. Sm. Sm. Rebarani v. Ashit (AIR 1965 Calcutta 162), Konna v Krishanswami (AIR 1972 Madras 247), Ratnaprabhabai v. Sheshrao (AIR 1972 Bombay 182) P. S. Ramarao v. P. R. Krishnamani (AIR 1973 Madras 279) and G. Krishnamurthy v. B. P. Syamanthakamani (ILR.1977 (1) Karnataka 246) are some of the decisions cited at the bar. It may be noticed that almost all the above said authorities did not consider the 1976 amendment introduced by Act 68 of 1976 whereby Explanation has been added to S.9 of the Hindu Marriage Act. That Explanation is as follows: "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". In Krishnamurthy v. Syamanthakamani (ILR 1977 (1) Karnataka 246) the Karnataka High Court held that the Explanation has not in any manner altered the scope and ambit of S.9(1) of the Act, as it stood before its amendment. So also it was held that deletion of sub-section (2) from the original S.9 would not make any difference as to the scope and ambit of S.9(1) of that Act. 4. In Gurdev Kaur v. Sarwan Singh (AIR 1959 Punjab 162) Grover, J. (as he then was) considered both S.9(1) and 9(2) of the Act and held as follows: "Although sub-section (2) of S.9 of the Hindu Marriage Act confines pleas in defence only to those grounds which can be taken under S.10,12 and 13 of the Act, subsection (1) itself lays down certain conditions which must be fulfilled before a decree can be granted. It will have to be seen firstly whether the husband or wife, as the case may be, has withdrawn from the society of the other without reasonable excuse. The second requirement is that the court must be satisfied of the truth of the statements made in such a petition. Thirdly there should be no legal ground why the relief should not be granted". In Sadhu Singh v. Jagdish Kaur (AIR. 1969 P & H 139) Sarkaria, J., (as he then was) relying on the above cited decision of Grover, J. summarised the law in the following words: "In order to appreciate the points in controversy it will be useful to set out the law on the point as contained in S.9 of the Act. 1969 P & H 139) Sarkaria, J., (as he then was) relying on the above cited decision of Grover, J. summarised the law in the following words: "In order to appreciate the points in controversy it will be useful to set out the law on the point as contained in S.9 of the Act. Sub-section (1) indicates that the petitioner seeking restitution of conjugal rights, in order to get a decree, has to prove two things: (i) that the respondent has withdrawn from the society of the petitioner, and (ii) that such withdrawal has been without reasonable excuse. The word 'excuse' appears to have been advisedly used. It is something less than justification; and something more than a mere whim, fad, or brainwave 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 'excused 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, because in view of S.101,102 and 103 of the Evidence Act. the burden of proving the aforesaid twin conditions in sub-section (1) rests on the petitioner. He has to succeed on the strength of his own case He cannot take advantage of the weakness of the defence". 5. The explanation to S.9 of the Hindu Marriage Act was introduced by Act 68 of 1976. The objects and reasons for this Explanation are as follows: "Clause 3. Sub-clause (a) seeks to insert a new Explanation in sub-section (1) of S.9 to clarify that the burden of proving reasonable excuse for withdrawing from the Society shall be on the person who has withdrawn from the society of other. Sub-clause (b) seeks to omit sub-section (2) of S.9 as it has the unintended effect of restricting the scope of defence of reasonable excuse available to the respondent - SOR. (68 of 1976)." It is now well settled that the function of an Explanation is to explain the meaning and effect of the main provision to which it is an explanation and to clear up any doubt or ambiguity in it. (68 of 1976)." It is now well settled that the function of an Explanation is to explain the meaning and effect of the main provision to which it is an explanation and to clear up any doubt or ambiguity in it. The Supreme Court in Dattatraya Govind Mahajan v. State of Maharashtra (1977 2 SCC 548) has held that even though the provision in question has been called an Explanation we must construe it according to its plain language and not on any apriori considerations. 6. On a careful examination of the decisions cited, we are in respectful agreement with the observation of Grover, J. in Gurdev Kaur v. Sarwan Singh (AIR 1959 Punjab 162) that S.9(1) only requires that the court must be satisfied of the truth of the statements made in a petition for restitution of conjugal rights and to that extent only the burden of proof is on the petitioner. But if a question arises whether there has been reasonable excuse for withdrawal from the society the explanation to S.9 will squarely apply and the burden of proving reasonable excuse shall be on the person who has withdrawn from the society. 7. So the main question to be considered is whether the respondent has reasonable excuse to withdraw from the society of the petitioner. 8. The learned counsel for the petitioner pointed out that in Ext. A-4 reply notice sent through an Advocate and in the objection filed by her the respondent did not raise the allegation of cruelty against the petitioner. A reading of Ext. A4 will show the circumstances under which the respondent came to reside in her parent's house. In Ext. A4 it is stated that when the parents of the respondent refused to withdraw the suit, the petitioner stated that if so, respondent and the child will have to stay in their house and she need come to him only after withdrawing the suit and with the money demanded by him. It is further mentioned that if she returns without complying with these matters, nobody will see her again. Such statements in Ext. A4 reply notice really amounts to allegation of cruelly. In the objection also the respondent has given her version of the case namely that the petitioner insisted that the civil suit has to be withdrawn and a further amount of Rs. 5.000/- is to be paid. Such statements in Ext. A4 reply notice really amounts to allegation of cruelly. In the objection also the respondent has given her version of the case namely that the petitioner insisted that the civil suit has to be withdrawn and a further amount of Rs. 5.000/- is to be paid. In Para.6 of the objection there is the specific averment that the petitioner physically assaulted the respondent and threatened to kill her. Therefore, the contention of the learned counsel that in Ext. A4 or in the objection there was no allegation of cruelty, cannot be accepted. 9. The petitioner and respondent have been examined in these proceedings. Apart from this evidence, the petitioner has examined 3 other witnesses and the respondent has examined 3 other witnesses. PW.1 is the petitioner. He denies the allegation that he manhandled or ill treated the respondent. It was also stated that M C. No. 109 of 1979 filed by the respondent for maintenance was allowed only in respect of the child and rejected in respect of the respondent as per Ext. A5 judgment. The evidence of PWS. 2,3 and 4 only shows that they tried to mediate. PW. 2 is the Secretary of the Karayogam of West Quilon. PW. 3 is a relation of the petitioner and PW. 4 is a neighbour. The lower court has rightly observed that they do not know the real cause that led to the separation of the petitioner and respondent and the reason why the respondent refused to go back to the petitioner. C.P.W.1 has spoken about Ext. Al mortgage of 16 cents of nilam executed by the respondent. As per his evidence the transaction took place at the instance of the petitioner and cash consideration was paid to him. C.P.W. 2 is a committee member of the Karayogam, who attended the marriage between the petitioner and the respondent and he speaks about the cash and ornaments given by the parents of the respondent. C.P.W. 3 claims to be the broker for the marriage and also gives evidence regarding the payment of cash and ornaments. C.P.W. 4 is the respondent herself. She has averred that her husband used to ill treat her and was cruel to her. She has also stated that he even threatened to do away with her. She has also stated that she apprehends that it would be injurious for her to live with him. C.P.W. 4 is the respondent herself. She has averred that her husband used to ill treat her and was cruel to her. She has also stated that he even threatened to do away with her. She has also stated that she apprehends that it would be injurious for her to live with him. She narrated more than one cruel conduct of the petitioner, who according to her, went to the extent of thrusting a pin on her thumb and she had to undergo treatment for such assault. 10. Learned Subordinate Judge, who had occasion to see the witnesses, chose to believe the evidence of the respondent. On going through the evidence we do not see any illegality or impropriety in accepting the evidence on behalf of the respondent or in accepting the finding of the lower court that the respondent had reasonable excuse to withdraw from the society of the petitioner. 11. There is no merit in the appeal and it has only to be dismissed. 12. Cr. R. P. No. 91 of 1982 arises from M. C. No. 109 of 1979 before the Chief Judicial Magistrate's Court, Quilon filed by the respondent against the petitioner for maintenance. The trial court dismissed the claim of the respondent for maintenance holding that she is living separately without any lawful excuse. By the very same order the Trial Court granted maintenance for the child. However, the Sessions Court, Quilon held that she had sufficient reason for living separately. In coming to this conclusion the Sessions Court relied on the judgment in O.P. (H.M.A.) 59 of 1978 of the Subordinate Judge's Court, Quilon. We have gone through the judgments of the trial court and the Sessions Court and also the evidence in this case. The finding of the Sessions Court requires no alteration in view of the judgment in the connected M F.A. There are no reasons to modify the quantum of maintenance awarded also. Therefore there is co merit in the Crl. Revision Petition. In the result, M.F.A. No. 589 of 1981 and Crl. R. P. No. 91 of 1982 are dismissed. There will be no order as to costs.