JUDGMENT:- This is a wife's Second Appeal challenging the validity and propriety of a decree passed by the learned Assistant Judge, Dhulia, on August 2, 1972, passed in favour of the husband for restitution of conjugal rights. The decree was passed by the learned Assistant Judge, Dhulia who set aside the decree passed by the Civil Judge, Senior Division, Dhulia dismissing the husband's petition under Section 9 on the ground that the husband had failed to prove that wife's withdrawal from his society was without reasonable excuse.

2. The findings of the trial Judge were based on careful appreciation of the oral evidence of the husband and his witness on the one hand and the wife and her witness on the other and also the documents on record produced by both the sides. The learned trial Judge observed:

"It is not disputed that the parties were married in 1963. It appears that they cohabited at Nawapur for about 6 or 7 years. There are three issues out of the marriage. At the time of the birth of the third issue (a daughter) disputes appear to have arisen between the parties. It appears from the evidence that the relations between the father of the petitioner and the father of the respondent became strained and this in turn caused a friction between the petitioner and the respondent. It is also the case of the respondent that the cause of quarrel between the two fathers-in-law was the alleged demand by the petitioner's father for wrist watch, a cycle and a ring. The respondent's case is that although her father had not agreed to give these articles or the price thereof to the petitioner or his father, the latter made this an issue and persisted in demanding the same time and again from the respondent's father. When the persistent demands were not fulfilled by the respondent's father, the petitioner's father started illtreating the respondent and that is how the controversy arose. It is not disputed that the father of the respondent commenced proceedings under Section 100 Criminal Procedure Code and got the respondent removed from the house of the petitioner under a search warrant. It is now established that when the respondent was produced before the Magistrate concerned, she made a statement that she would opt to go to her father, i.e. to reside with him and not with the petitioner; at that time she alleged that the petitioner was treating her with cruelty and she became apprehensive as to her personal safety and security at his hands, if she returned to him."

Since then she has been residing with her father.

2-A. It is also undisputed that a criminal case was filed by the petitioner against the respondent's father and another; and that case was ultimately compounded. The wife had commenced proceedings for the custody of her eldest son who was not allowed to accompany her when she went to her father's place. Before she went to her father's place that son was taken to the petitioner's brother at a different place. The custody proceedings ended against the wife. The other two children are with the wife.

3. The learned Civil Judge, therefore, rightly came to the conclusion that the relations between the parties were extremely strained. The learned Civil Judge also relied on the fact that though the husband was asking for restitution of conjugal rights in para. 5 of the petition he averred as follows:-

The learned Judge therefore held that this amounted to doubting the paternity of the third child though the learned Advocate for the husband stated before the learned Civil Judge that he was not pressing that issue and he was pressing only for the return of the respondent i.e., restitution of conjugal rights.

4. The learned Judge fully considered the oral and documentary evidence and found that there was no evidence in respect of the allegation that the respondent was guilty of any adulterous connection in any relevant period; but having regard to the relation between the parties it cannot be said that the wife left the husband without any fa

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