An agreement between the parties to live separately does not bar the wife's suit for restitution of conjugal rights, and delay in filing a petition for restitution of conjugal rights may be justified in certain circumstances.

JUDGMENT:- Thin Second Appeal is by a husband against whom his wife the respondent, had obtained a decree for restitution of conjugal rights on a petition filed by the respondent under Sec. 9 of the Hindu Marriage Act, before the learned Subordinate Judge of Tiruchirapalli.

2. The appellant married the respondent in 1954 according to Hindu rites and they were living together as husband and wife till 1963. Now, according to the respondent, in the year 1963, there was a big fire accident in Uppiliar Street, Denanallur, Tiruchirapalli and the hut in which she was living with the appellant was also burnt down with the result that they had no place to live in and hence her husband, the appellant, asked her to go and live with her parents and promised to take her back after reconstructing the house and hence she, the respondent, went to her parents' house and was living there But the appellant did not make good his promise to take her back even though he put up a thatched house and began to live there and the appellant has been keeping a concubine by name Angammal in that house and at her instigation and on account of her influence he refused to take her back (the respondent) in spite of mediation by certain persons and in February, 1963, the appellant repaid to her a sum of Rs. 200 which she had borrowed from third parties and lent to the appellant for reconstructing the house and the appellant made her affix her thumb impression on a blank paper representing that it was required as a voucher to evidence the repayment of that money and after obtaining her thumb impression, the appellant deserted her completely and she issued a notice to him on 17-10-1969, to which the appellant sent a reply containing false allegations and stating that the marriage between them had been dissolved before a panchayat in accordance with the custom of their caste.

3. The appellant's case is that there is no marriage subsisting between him and the respondent for in accordance with the custom in the community, a caste-panchayat was convened at which marriage between him and the respondent was dissolved on 24-2-1963 and to evidence such a dissolution of the marriage two documents were prepared and signed by both the parties and each was given one of those documents and jewels belonging to the respondent were returned to her as also the amount of Rs. 200 which she had borrowed from a third party and given to the appellant and after the divorce the respondent has not been living with the appellant but has been with strangers.

Both the Courts below have found that such a custom in the community under which the marriage could be so dissolved had not been established. The learned Subordinate Judge found that there was a panchayat in the presence of the appellant's witnesses at which both the parties agreed to have a divorce and in pursuance thereof Ex. B-1 has been brought into existence. The learned District Judge, however, did not make any decisive pronouncement with regard to Ex. B-1, but observed that "even accepting that Ex. B-1 was signed by both the parties knowing the contents fully well, in view of the finding that there is no custom of effecting such a divorce in the community, the conduct of the appellant constituted sufficient reason for the wife remaining away from her husband". In regard to the question as to whether the appellant had withdrawn himself from the society of the respondent for no justifiable or proper reasons the learned Subordinate Judge has observed that "admittedly the parties have not been living together and the respondent has been living in her father's house while the appellant is living in the same street with one Angammal who is said to be his aunt; and further the appellant had executed a settlement deed in favour of that Angammal dated 1-1-1960 in respect of a house property wherein he has described Angammal as his concubine and the appellant in the reply notice dated 21-1-1966 which he sent through his advocate (Ex