A wife can resist a husband's petition for restitution of conjugal rights by proving that she had a reasonable excuse for withdrawing from his society, even if the excuse does not amount to a matrimonial offence warranting judicial separation, nullity of marriage, or divorce.

1. THE hearing of this appeal was concluded on 19. 5. 1970. At the conclusion of the hearing we expressed our desire to effect a reconciliation if that was possible and we also requested both the husband and the wife to be present in Court on a date that may be suitable to them. On the suggestion of the parties this date was fixed for the presence of the husband and the wife in Court and also for delivery of judgment, in case no settlement was arrived at. Both the husband and the wife appeared in court today and we made attempts to effect reconciliation between the parties but that has failed. After that the learned Advocates made further submissions on the points of law and also on facts.

2. THIS is an appeal by the husband against the judgment and decree dismissing his application for restitution of conjugal rights against the wife. The marriage took place on August 6, 1962, according to Hindu rites. After marriage, according to the husband, the couple lived for about a month at mysore; the husband, a doctor, was serving there in the railways. She was brought to her father's place at Lake town but was unwilling to return to mysore. She was taken back to Mysore on persuasion against her wish and soon after her father brought back to his residence at Lake Town in the suburb of Calcutta. The husband in his agony had to resign and came back to the wife at Lake Town to persuade her to live with him in a peaceful matrimonial home. He secured a job at garbeta and took the wife there but even so her stay there was short and she left for her father's place without excuse. Since June 13, 1963 to June 11, 1967, she lived at her father's place away from the husband, who visited her several times to persuade her to live with him but all was in vain. On December 19, 1963, a son was born to her and subsequently a daughter was born to her but all about her was kept secret from the husband. Early in 1967, at the intervention of friends, she came back to the husband's place and stayed there upto December 30, 1967, when she again withdrew from the society of the husband without any excuse. In spite of his attempts she refused to come back. The husband in the said circumstances prayed for a decree for restitution of conjugal rights against the wife.

The petition was opposed by the wife who denied the several allegations made in the petition. Her material allegations were that due to the husband's short temper, violent and ill treatment to her, his growing suspicion about her character, she was forced to leave her husband. The husband taunted her lack of beauty and character causing distress in her mind and she was unable to live with him for fear of permanent injury to her and her children.

3. THE husband's present application for a decree for restitution of conjugal rights was filed on February 14, 1968, and the wife, it appears, filed an application on May 20, 1968, for a decree for judicial separation against the husband, basing her case mainly on the husband's desertion as also his cruelty to her, as alleged in her written statement to the husband's petition. This application was contested by the husband who denied that he was guilty of any matrimonial offence.

4. ON the prayer of the husband, both applications were heard analogously and before the learned judge, the parties adduced evidence oral and documentary. The learned Judge held on the application of the wife that though the husband ill-treated the wife before 1967, the same did not amount to legal cruelty and since 1967, no legal cruelty was proved. As to the husband's application, it was found that the wife withdrew herself from the society of the husband for grave and weighty causes and her refusal to return to the husband, even if there was any effort for such return, which was not proved, was justified. Accordingly by the same judgment, both applications were dismissed. The husband preferred the present appeal against the decree dismissing his application while no appeal