KAN SINGH, J—This is an appeal by a wife directed against the judgment of the learned District Judge, Pali dismissing the wifes application under the Hindu Marriage Act, 1955 for restitution of conjugal right against her husband.

2. The parties belong to the Sadh (Vaishnava) community and were married according to Hindu rites in Samvat year 2013. They lived together as husband and wife for about 6 years. Thereafter when the wife had conceived she was sent to her fathers house for delivery. A male child was born to her. Unfortunately the male child had died. The grievance of the wife was that after the child birth her husband Rajaram had withdrawn from her society without a reasonable excuse and had failed to look after her. The reason assigned by the wife for this behaviour was that she was being ill treated and the husband and his people wanted an educated wife. It was further stated in the petition that prior to the present petition a similar petition was filed in the District Court, but it was withdrawn by the wife on 3-3-64 as a result of fraud practised on her by the husband.. Therefore, regarding this withdrawal it was urged that it should not operate as a bar to the maintainability of the present petition.

3. The husband resisted the petition. He pleaded that the petitioner had been divorced by him according to the custom in their community. The custom of divorce was that a husband would be tearing a piece from his turban and giving it over to the wife saying that they were no more husband and wife. It was further pleaded that the wife had been living in adultery with one Madanlal.

4. The learned District Judge set down the following issues for trial :

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¼4½ vk;k lk;yk vkuUnh nsoh dk fdlh O;fDr ds lkFk uktk;t rkYywd Fkk vkSj ;g rks fdlls vkSj D;k bl dkj.k mldks gd lksgjh dh fMxzh ikus ds vf/kdkj ugh gSA

¼5½ nknjlh D;k gksxh\

Five witnesses were produced by the wife and 12 by the husband. Regarding issue No. 4, that is about adultery, after considering the evidence led by the parties, the learned Judge thought that there was only the uncorroborated testimony of P. W. 2 Heera Dass and it was unsafe to rely on his statement in such an important matter. Brushing aside this direct evidence the learned District Judge, however, emphasised one circumstance that had emerged in the case. It was the statement of Smt. Anandi Devi. The learned Judge referred to it and observed that Smt. Anandi Devi had a pregnancy of four months when she was sent to her fathers home for delivery and she has admitted in her statement in this connection that her husband had came from Jodhpur after full one year when she was being sent to her fathers house. Apart from this the learned Judge observed that during April, 1962 the husband was at Sumerpur under training and the wife was at Takhatgarh, a place 20 miles away from Sumerpur. Regarding this period he observed that the couple were not in touch with each other. In the result, the learned District Judge found that as there had been no cohabitation between Smt Anandi Devi and her husband, according to Smt Anandi Devis own statement, the child born to her could not have been of Rajaram. Therefore., the learned District Judge reached the conclusion that the husband has been successful in discharging the burden that the petitioner was leading an adulterous lift-, having conceived a child from someone other than her husband Rajaram.

5. As regards issue No. 3, regarding the giving of divorce, the learned District Judge came to the conclusion that t

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