A husband's charge of his wife's illicit relations with another man is inconsistent with a sincere desire for the resumption of married life and may lead the court to refuse a decree for restitution of conjugal rights.

AVADH BEHARI ROHATGI

( 1 ) (ORAL) This is a wife s appeal from the decree of restitution of conjugal rihts 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. 00 or Rs. 450. 00 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 Marriage 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 refuses 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 has been made mala fide and that the husband had no intention to live with her. The husband filed a replication. The following issues were framed :

1. Whether the respondent has withdrawn from the society of the petitioner without any sufficient and reasonable cause as alleged in the petition ?

2. Whether the petitioner has treated the respondent with such cruelty as to cause a reasonable apprehension in her mind that it would be unsafe and injurious for her to live with the petitioner ?

3. Relief.

( 7 ) THE trial judge held that the wife left the matrimonial home without any reasonable excuse and that her allegation of cruelty was false. He granted the husband a decree of restitution of conjugal rights. Now the wife appeals to this court.

( 8 ) TO complete the sequence of events it may be mentioned here that after the husband had obtained a decree for restitution of conjugal rights on January 30, 1974, from the court of the Additional District Judge he filed another proceeding a petition for judicial separation under s. 10 of the Act on February 8, 1974, in the court of the Subordinate Judge. Subsequently on an application of the wife these proceedings for judicial separation were stayed on October 15, 1974, as the wife had brought her appeal to this court in the meanwhile.

( 9 ) IN her evidence the wife said that she was living separately from the husband for a just cause. She enumerated those causes in her evidence. Firstly, she said that the husband used to come drunk in the house; secondly she said that he brought a girl with him sometimes; thirdly her complaint was that the husband took away ^ her entire salary and left a pittance of five or ten rupees for her ; fourthly she testified that the husband wanted to appropriate her entire dowry and for that purpose he wanted her to give the key of the place where those articles of dowry were kept and on her refusal the husband slapped her. Fifthly, she narrated the incident of November II, 1970, when according to her, her husband and his brother-in-law Govind Ram with a third person, a friend of the husband, Ranjit by name, came to her father s house where she was living. She said that the husband beat her and gave blows on her belly, tore her blouse and after that all of them fled away.

( 10 ) AS to the main incident of July 16

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