A WIFE'S REFUSAL TO RESUME COHABITATION WITH HER HUSBAND WITHOUT SUFFICIENT CAUSE AMOUNTS TO CRUELTY.

M.S.Liberhan and J.C.Verma JJ.

1. This appeal is preferred by the appellant against the judgment dated 1.2.1995 passed by District Judge, Hissar, whereby he declined to grant a decree of conjugal rights to the appellant.

2. The parties were married on 24.4.1985, cohabited together as husband and wife and ultimately parted company in March 1991. They have two minor children from this wed-lock.

3. The appellant put forth his version for parting company by averring that the respondent-wife wanted him to shift from his village where he ordinarily resides with his parents and doing cultivation, so as to start living at Hissar with the parents and other family members of the respondent-wife. He was not agreeable to this proposition of the respondent. Thereafter, she has withdrawn from the society of the appellant and refused to return to the matrimonial home without there being sufficient cause.

4. The respondent refuted the submissions made by the appellant and averred that she was maltreated turned out of the house and pressurised to bring more dowry by the appellant. When all efforts to persuade the appellant to keep her failed, she sought maintenance under Section 125, Cr.P.C. in 1992 and the present petition for restitution of conjugal rights has been filed by the husband as a counter blast of her petition under Section 125, Cr.P.C.

5. The trial Court after examining the oral evidence of the witnesses produced by the parties in support of their respective claims inferred that since the wife lived in the village for a period of six years thus keeping in view the Hindu tradition, there cannot be sudden thought for shifting from village to Hissar and thereby rejected the version of the husband. It was observed that since the relationships of husband and wife is sacred and no wife is prepared to disrupt the matrimonial tie the version with respect to the claim of dowry having been put forth by her first, in the proceedings under Section 125 Cr.P.C. i.e. prior to the filing of the petition for restitution of conjugal rights, corroborates the version of the respondent-wife with respect to the demand of dowry. The filing of the application after waiting for 1-1/2 years for the grant for maintenance further supports the averment of the respondent-wife that they had been attempting for rehabilitation.

6. Large number of efforts were made by this Court as well as the trial Court for rehabilitation of the parties which resulted in fiasco. We may hasten to add that females usually considered as weaker sex are required to be protected, yet at the same time one cannot be permitted to adopt Manjors policy i.e. neither the wife would live in the matrimonial home nor would cease the matrimonial status.

7. The reasoning adopted by the trial Court viz. living for six years together, relationship of husband and wife being sacred, version of dowry being put first in the application for maintenance, in their totality by itself cannot give an inference that wife is denying her company to the husband for a sufficient cause. It is mental attitude of the parties which is required to be judged in the facts and circumstances of each case keeping in view the stature of the parties, tradition of the parties, the ordinary course of events which have taken place, bereft of texts, scriptures or idealism, which should be judged that to make the matrimonial home and keep peace in the society, need of respect and trust of husband and wife in each other, social changes coming now on account of the Hindu Marriage Act and on account of other social awakening predominating factors, old age customs where man was treated as idol and wife was required to worship him. Nice or subtles difference and phases of individual society are invaluable in checking the danger of abstractedness in mental outlook.

8. Taking into consideration the ground realities neither a conservative view nor a liberal view can be taken. Herein from the evidence read out in Court and by obse