H.Mahapatra, J.

1. This appeal arises out of a proceeding under Section 9 of the Hindu Marriage Act, 1955 (25 of 1955), in which the husband made an application for restitution of conjugal rights on the ground that his wife who is appellant here, had without reasonable excuse withdrawn from his society. In defence the appellant alleged cruelty, desertion by and in vitality of the husband. The Court below on consideration of the evidence allowed a decree for restitution of conjugal rights in favour of the husband. The present appeal is directed against that

2. Apart from assailing the findings as given by the Court below, learned counsel urged two other points. He contended that according to the respondents case the appellant had left his society in 1955 and lived since then with her parents. The proceeding under Section 9 was initiated by the husband in 1964. For a period of about ten years no step had been taken by the husband for restitution of conjugal rights. This aspect has not been taken into account by the court below and according to learned counsel the decree for restitution of conjugal rights, as passed, has been vitiated.

3. Sec.23(1)(d) of the Hindu Marriage Act