A husband who accuses his wife of adultery or illicit sexual relations cannot obtain a decree for restitution of conjugal rights, as such an accusation makes it impossible for the wife to live with him.

( 51 ) THE counsel for the husband has not been able to tell me what useful purpose would a second proceeding serve after the husband has obtained a decree for restitution conjugal rights. Non-peformance of a decree for restitution of conjugal lights is one of the grounds for obtaining a decree of divorce. Similarly non-resumption of cohabitation for a period of two years or upwards after the passing of the decree for judicial separtion is another ground for divorce. A husband need not obtain both types of decrees in order to bring a petition for divorec, one is good enough.

( 52 ) THE counsel for the husband lastly argued that he was prepared to withdraw the charge of illicit connection with Nayyar and he was also prepared to withdraw the petition for judicial separation which the husband has filed and which is now pending.

( 53 ) I do not think this can be allowed. Even if the husband is allowed to withdraw the charge and the subsequent petition this will hardly make any difference for he has not given an opportunity to the wife to comply with the decree of restitution even if she wanted to put herself in the right by making a bona fide offer to return and remedy the wrong.

( 54 ) IN Ishwar Chandra Ahlawalia v. Pamilla Ahluwalia (AIR 1962 Punj. 432) where after a decree for restitution of cojugal rights had been passed the husband proceeded with a petition for annulment of marriage under section 12 (1) (e) of the Act. After its dismissal and after expiry of the period of two years from the date of the passing of decree for restitution of conjugal rights, he filed a petition for dissolution of marriage under section 12 on the ground of non-compliance of the decree by the wife. Falshaw C. J. , held that it was quite-impossible for the wife to make any effort to comply with the decree for restitution of conjugal rights, as long as the husband was proceeding with a petition for nullity of the marriage and that it was doubtful whether any sincere efforts were made on behalf of the husband to get his wife to comply with the decree. The husband's petition was dismissed.

( 55 ) FOR these reasons I would allow the appeal and set aside the decree of the trial judge. The petition for restitution of conjugal rights is dismissed In the circumstances the parties are left to bear their own costs.

Avadh Behari Rohatgi, J.

( 1 ) THIS is a wife s appeal from the decree of restitution of conjugal rights passed by the Additional District Judge on January 30, 1974, against her.

( 2 ) THE appellant Sushil Kumari was married to the respondent Prem Kumar on February 25, 1970. The husband is 32 years of age. Nearly same is the age of the wife. Both of them are lower division clerks. They are getting about Rs. 400/ or Rs. 450/per month as pay.

( 3 ) THE husband and wife lived together till July 15, 1970. This is admitted on all hands. The case of the husband is that on July. 16, 1970, the wife left his house in the morning to join her duties at. the office. She did not come back to his house in the evening. Thereafter she never came back to the matrimonial home.

( 4 ) AT the time the wife left the house on July 16, 1970, she was in the family way. In February 1971, when the husband and wife were living apart a daughter was born to the. . wife. That girl today is five years of age. She is living with her mother.

( 5 ) ON July 13, 1971, the husband filed a petition for restitution of conjugal rights under s. 9 of the Hindu marriags Act (the Act ). The husband alleged that the wife left the house against his consent on July 16, 1970, and that she is living separately without just cause and refuse to come to him inspite of his efforts

( 6 ) THE wife opposed the petition. Her main defence was that on July 16, 1970, she was beaten and turned out of the house by the husband. She pleaded that her husband was cruel to her and that she had an apprehension in her mind that it will be harmful and injurious for her to live with him. She also said that the petition

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