KAN SINGH, J.—This is a husbands appeal directed against the judgment of the learned District Judge, Ajmer dated 23-12-71 dismissing the wifes petition for restitution of conjugal right under sec. 9 of the Hindu Marriage Act, 1955, hereinafter to be referred as the "Act".

2. Since it was the respondents petition that was dismissed, the question arises at the threshold of the arguments whether the husband has a right of appeal. Whereas learned counsel for the respondent contended that he has no such right, learned counsel for the appellant has canvassed that inasmuch as the judgment adversely affects the appellant-husband in that the learned Judge has found that the respondent is still the wife of the husband he has a right of appeal.

3. The relevant facts are briefly these. The spouses belonged to the Koli community which is a scheduled caste. There was a little confusion because at some places the wife has described herself as a Rajput, but both the learned counsel are agreed that the parties are Kolis by caste. The word "Rajput" may have been used on account of their sentiments for tracing their ancestry from Rajputs. They were married according to the Hindu rites on 16-2-64. Two sons were born of the wedlock., It appears that they lived together till 5th January, 1969, but thereafter all was not well with them and they separated. There was a caste Panchayat that was convened at the instance of the father of the wife. At the meeting of the caste Panchayat there was an effort for reconciliation, but as that proved abortive, both the spouses then agreed to a divorce with mutual consent according to the custom prevalent in the community and exchanged documents embodying the divorce. The wife nevertheless filed a petition under sec. 9 of the Act for restitution of conjugal rights by the husband alleging that she had been forced to sign the deed of divorce. She further averred that the husband had without a just cause withdrawn himself from her society.

4. The husband resisted the petition. He, inter alia, pleaded that Smt. Shankutla was no longer his wife as there had been a valid divorce between them acco-rding to the custom of the community to which they belonged. He also denied that he had withdrawn himself from the society of the wife. He challenged that it was the wife who used to desert him and lived with her parents against his wishes. He made efforts to bring her, but was not successful.

5. The learned District Judge framed the following issues:—

(1) Whether the petitioner is not the wife of the respondent ?

(2) Whether the petitioner was forced to execute a mutual agreement i. e. an agreement in favour of each other purporting to be a deed of divorce as stated in para 4 of the petition ?

(3) Whether the respondent has without any reasonable excuse, rhyme and reason withdrawn from the society of the petitioner as stated in para 7 of the petition ?

(4) Whether a valid, voluntary and customary divorce recognised in Koli community was effected on 26 7-1970 and accordingly the petitioner and the respondent ceased to be husband and wife since them ?

(5) Whether the petitioner being a willing signatory of the Divorce-cum-release deed dated 26-7-1970 is estopped from challenging the validity and propriety of the said divorce ?

(6) Whether sec. 29 of the Hindu marriage Act is a bar to the maintainability of the present petition by the petitioner ?

(7) To what relief is the petitioner entitled ?"

6. Both the parties produced their evidence and on consideration of the same the learned District Judge held (1) that the wife has not been able to establish that she was forced to execute the deed of divorce, (2) he also found that there was a custom of divorce prevalent in the Koli community, (3) he also reached the conclusion that the Panchayat had made efforts at conciliation and it was only when such efforts failed that the parties executed the respective deeds of divorce in favour of each other-(4) the learned Judge also came to the conlusion

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