Continuous impotency is required to sustain the defense against an application for restitution of conjugal rights, and trustworthy evidence is essential to support allegations under the Hindu Marriage Act.

( 1 ) THIS appeal is by a husband whose application for a decree for restitution of conjugal rights was dismissed by the Civil Judge.

( 2 ) THE marriage between the two spouses was admittedly solemnized in March 1955. While according to the husband they lived together as man and wife for a period of two years thereafter, the wife staled in her statement of objections that they lived together for a short time under the same roof During the course of her evidence she stated that they so lived for about a year

( 3 ) ON the allegation that sometime during the year 1958, the wife went to her parents but never returned despite many efforts made by the husband to get her back, he sought a decree for restriction of conjugal rights.

( 4 ) THE defence to that application was manifold. The husband was charged with incapacity for consummation of the marriage. It was nest said that he attempted to commit sodomy on the wife and that he imputed unchastity to her. That he commenced manhandling her and denied her even food and other comforts of life were the other allegations

( 5 ) THE only two witnesses who gave evidence were the two spouses, the husband supporting his case and the wife supporting hers. But even in the course of her own evidence the wife said nothing about the charge made against her husband that he used to either beat her or starve her. She however, gave evidence about the incapacity for consummation, the unsuccessful attempts to commit sodomy and the imputation of unchastity

( 6 ) THE Civil Judge who did not record any very clear findings upon the various accusations made against the husband, reached the conclusion that this was not a case in which the husband could claim a decree for restitution of conjugal rights. The husband appeals

( 7 ) SUB-SECTION (2) of Section 9 of the Hindu Marriage Act makes it clear that the grounds which could be urged by way of an answer to an application for restitution of conjugal lights could be no other than those on which a spouse could secure a decree for judicial separation or for nullity of marriage or divorce. If the wife's allegation that there was incapacity on the pan of the husband for consummation is true and. if it could be said that such incapacity can be equiparated with impotence, it is clear, that since impotence at the relevant points of time is a ground for a decree of nullity under Section 12 (1) (a) of the Act. It would be an equally effective ground on which an application for resolution of conjugal rights could be resisted It is equally plain that if the husband committed sodomy which is a ground for divorce under Section 13 (ii) of the Act or if it could be said that his attempt to commit sodomy about which the wife gave evidence is cruelty falling within Section 10 (1) (b) of the Act which would be a ground for judicial separation, the wife would have an equally good defence to the application For a decree for restitution of conjugal rights.

( 8 ) WHAT remains about the matters to which the wife referred in the course of her evidence is the imputation of unchastity. To be able to defeat the application made by the husband what the wife had to prove was that what the husband did amounted to cruelty Falling within Section 10 (1) (b)of the Act.

( 9 ) ALTHOUGH the Civil Judge did not say so in so many words, it is manifest that what he did find was that there was good and trustworthy evidence about the incapacity for consummation and the attempted acts of sodomy as also the charge of infidelity on the part of the wife. It is obvious that since the wife herself gave no evidence about the beating and the starvation to which she referred in her statement, the Civil Judge could not have intended to find that even those allegations had been established.

( 10 ) SINCE there is no evidence that the husband beat the wife or that there was any cruelty in the form of starvation and the like, what should be considered is whether it is established that the husba