( 1 ) THIS second appeal arises out of the suit instituted in the year 1969 on the file of the Munsiff, Raichur, by the plaintiff for a decree fox restitution of conjugal rights against the defendant.

( 2 ) THE parties to the suit are Muslims. The plaintiff, who is the husband, is a resident of Raichur. He took the defendant in marriage at Hyderabad on the 17th of May, 1963. Thereafter the defendant came over to Raichur and lived with the plaintiff. By Deer 1966 two children were born to them. In Deer 1966 the defendant left for Hyderabad. The case of the plaintiff was that she had gone away to Hyderabad since he was not willing to leave ' his parents and shift hims,it to Hyderabad. The defendant's case was that some time after the marriage, the plaintiff began to make demands on her father to provide him with a motor cycle, a gold ring etc, and as the said demands were not complied with, he began to ill-treat her. On coming to know of it, her father came to Raichur and took her away to Hyderabad. She did not thereafter return to Raichur. In May 1969, the defendant issued a notice to the plaintiff calling upon him to pay her and her children maintenance. The said notice was replied by the plaintiff. On realising that the defendant was about to sue, the plaintiff issued a notice on 2-9-1969 calling upon the defendant, to rejoin him at Raichur. As the defendant was not willing to do so, the plaintiff instituted the suit for restitution of conjugal rights, out of which this second appeal arises.

( 3 ) THE trial Court was of the opinion that the plaintiff had fil-treated the defendant during her stay at Raichur and that therefore the defendant was entitled to stay away from her husband. It accordingly dismissed the suit. Aggrieved by the decree of the trial Court, the plaintiff filed an appeal before the learned Civil Judge, Raichur. Although he was of the opinion that the defendant had not established that the plaintiff had treated her with such cruelty as to cause reasonable apprehension in her mind that it would be harmful to her to live with the plaintiff, he found that the defendant was justified in staying away from her husband. He there fore dismissed the appeal. Hence this second appeal. The defendant is absent and unrepresented.

( 4 ) IT is not disputed that the defendant was staying away from her husband from Deer 1966. Although it was alleged that the plaintiff had written letters to the defendant calling upon her to return to him prior to 1969, no material was placed before the Court in support of that part of the case. The learned Civil Judge has found that for the first time the plaintiff called upon the defendant to return to him only after a notice was issued on behalf of the defendant calling upon him to pay maintenance. It is also found by the learned Civil Judge that for nearly three years until the suit was instituted the plaintiff did not pay any amount for the maintenance of his wife and children. He did not even make any attempts to see them at Hyderabad. Within a few months after the suit was instituted the plaintiff took a second wife. These facts are not in dispute.

( 5 ) IT was argued by Mr. Manohar Rao Jagirdar learned Counsel appearing on behalf of the plaintiff, that the lower appellate Court was in error in holding that the defendant had justifiable cause to stay away from her husband, merely because the plaintiff had taken a second wife during the pendency of the suit. It was argued by him that since Muslim Personal law allowed the plaintiff to take a second wife, it was not open to the defendant to contend that she would not stay under her husband's roof along with a rival wife.

( 6 ) DEALING with the kinds of defences which a wife under the Muslim law can take in a suit for restitution of conjugal rights, the Judicial committee of the Privy Council observed in Moonshee Buzloor Riaheem v. Shumsoon Nissa Begum, as follows :" It seems to them clear, that if cruelty in a degree rendering it unsafe for

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