JUDGMENT

SABYASACHI MUKHARJI, J.:— The parties herein were married at Julludur City according to Hindu Vedic rites on or about 24th January, 1975. The first daughter of the marriage Menka was born on 4th January, 1976. On 28th February, 1977 second daughter Guddi was born. It is alleged that 16th May, 1977 was the last day of cohabitation by the parties. It is alleged that on 16th May, 1977, the respondent-husband turned the appellant out of his house and withdrew himself from her society. The second daughter unfortunately expired in the house of the respondent/father on 6th August, 1977. On l7th October, 1977, the wife-appellant filed a suit against the husband/respondent herein under Section 9 of the Hindu Marriage Act, 1955 hereinafter referred to as the said Act for restitution of conjugal rights.

2. In view of the argument now sought to be advanced, it is necessary to refer to the said petition. In the said petition, the wife had set out the history of the marriage as hereinbefore briefly mentioned and alleged several mal-treatments both by the husband as well as by her in-laws and thereafter claimed decree for restitution of conjugal rights. On 21st March, 1978, the learned Sub-Judge 1st Class passed an order granting Rs. 185/-per month as maintenance pendente lite and Rs. 300/- as the litigation expenses. On 28th March, 1978, a consent decree was passed by the learned Sub-Judge 1st Class for restitution of conjugal rights. It may be mentioned that on the petition of the wife for restitution of conjugal rights, the husband/respondent appeared and filed his written statement admitting therein the factum of marriage between the parties but denied the fact that the respondent had ever made any demand from the petitioner as alleged or had ever disliked her or had withdrawn from her society or turned her out from his house as alleged by the wife-petitioner in her petition for restitution of conjugal rights. The respondent thereafter made a statement in the Court that the application of the petitioner under Section 9 of the said Act be granted and decree thereof be passed. Accordingly the learned Sub-Judge 1st Class on 28th March, 1978 passed the decree for the restitution of conjugal rights between the parties. It was alleged by the petitioner-wife that the appellant had gone to the house of the respondent and lived with him for two days as husband and wife. This fact has been disbelieved by all the courts. The courts have come to the conclusion and that conclusion is not challenged before us that there has been no cohabitation after the passing of the decree for restitution of conjugal rights.

3. On 19th April, 1979, the respondent/husband filed a petition under Section 13 of the said Act against the appellant for divorce on the ground that one year had passed from the date of getting the decree for restitution of conjugal rights, but no actual cohabitation had taken place between the parties, The appellant filed her reply to the said petition. The categorical case in reply of the appellant was that it was incorrect that after passing of the decree, there has been no restitution of conjugal rights between the parties, positive case of the appellant was that after passing of the decree, the wife was taken to the house of the husband by the parents of the wife after one month of the decree and that the husband kept the wife in his house for two days and she was again turned out. It was further alleged that the wife had filed an application under Section 28-A of the said Act in the court of Sub-Judge, 1st Class, Julludur on 22nd January, 1979 with the request that the husband should be directed to comply with the decree passed against him under Section 9 of the said Act and the application was pending. at the time when the reply was filed by the wife to the petition for divorce.

4. The learned District Judge on 15th October, 1979 dismissed the petition of the husband for divorce. The learned Judge framed two issues, one was whethe