A spouse who withdraws from the society of the other spouse without reasonable excuse is liable to a decree for restitution of conjugal rights.

1. The petition giving rise to this appeal was instituted by Gurdip Singh (now the respondent) for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 (hereinafter called the Act) against Shrimati Surinder Kaur.

2. His case was that he was married to her on 10-12-1961 at Ludhiana and thereafter they had been living as husband and wife, and were residing as such at Chandigarh. On 31-12-1963, she left Chandigarh representing that she would be going to Ludhiana to see her mother. Thereafter, she did not return to his house. So, he made several efforts even through relations to secure her society but she declined to return to the house. Therefore, in the year 1964, he moved petition under Section 9 of the Act for restitution of conjugal rights against her, but the said petition was allowed to be dismissed for default as a compromise had been arrived at between them that she would be residing with him at Chandigarh. When she did not abide by the said compromise, he (the respondent) made efforts to secure her society and also approached relations for help in the matter. All these efforts failed and he moved the present petition and sought decree for restitution of conjugal rights on the averment that she (the appellant) had withdrawn from the society without reasonable excuse. The petition was contested by Shrimathi Surinder Kaur. She admitted the factum of marriage but controverted the other material allegations of Gaurdip Singh and pleaded that he showed no liking for her from the beginning that he had turned her out of his house at Chandigarh twice that he had also doubted her character and that he failed to pay the amount of Rs. 150/- which had been assessed as litigation expenses in the previous petition and, as such, the present petition was not maintainable. Hence, the case was tried on the following issues:-

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1. Whether the respondent has withdrawn from the society of the petitioner without any reasonable excuse?

2. Whether the petition is not maintainable without payment of previous litigation expenses?

3. Relief.

The learned District Judge, Chandigarh, decided issue No. 2 against Shrimathi Surrinder Kaur and finding issue No. 1 in the affirmative, he granted decree for restitution of conjugal rights in favour of Gurdip Singh. Aggrieved by the said decree, Shrimathi Surrinder Kaur has appealed. The evidence was read out to me and I heard the arguments and examined the record.

3. The facts, that the parties were married at Ludhiana on 10-12-1961, that they had been living as husband and wife thereafter, that they had last resided as such at Chandigarh till 31-12-1963 when the appellant went to Ludhiana, and has been residing with her widowed mother there since then, that she has been in service as teachers in Kaligidhar Khalsa Higher Secondary School, Ludhiana, since 1964, that Hira Singh is the real uncle of the appellant and he resides at Delhi and that, at least once he had called the parties to Delhi for resolving their differences but he could not succeed therein, are amply borne bout by the evidence present on record and were not disputed. The learned counsel for the appellant challenged the decree with the contentions that the respondent had been guilty of cruelty which compelled her (the appellant) to seek shelter in the house of her mother, that there had been delay in the making of the petition and that the motive of the respondent in seeking restitution of conjugal rights was ulterior, as he wanted to divorce her and since the previous petition should be deemed to be pending, the present petition was not competent. Cruelty, whether physical, legal or mental, is good defence in a petition, moved for restitution of conjugal rights. The question for determination is as to whether it is the cruelty which preceded the withdrawal of one spouse from the society of the other which is of importance or the cruelty subsequent to such withdrawal can be of any relevance. It is clear from sec