JUDGMENT :- This civil miscellaneous second appeal is filed by the husband against the order of the District Judge, Madurai dismissing the petition for restitution of conjugal rights against his wife. The trial Court allowed the petition for restitution of conjugal rights. But on appeal the lower appellate Court dismissed the petition for restitution of conjugal rights.

2. The main ground on which the petition for restitution of conjugal rights is based, is that, in spite of his earnest attempts to bring the wife to his house, the wife, without reasonable cause, refrained from joining him. The defence is that the wife was never properly treated, that she was forced to file a maintenance suit against the husband which resulted in a compromise decree, that, even, thereafter, the husband did not take any effort to act according to the compromise decree, and that, as a result of it, she could not join the husband. It has also been stated that the petition for restitution of conjugal rights was filed after an inordinate delay.

3. The facts, briefly stated, are : The appellant and the respondent lived as husband and wife for a period of five months after their marriage and thereafter, misunderstanding arose between them. The wife filed a maintenance suit which resulted in a compromise decree. The decree provided that the husband should take on rent a separate house for the residence of the wife and himself and lead the proper marital life. It was also provided in the decree that, in case the husband rendered joint living impossible by cruelty or circumstances for joint marital life disappeared, he should pay maintenance of Rs. 20 per mensem to the wife from the date of failure of joint life. In pursuance of this compromise decree, attempts were made by the husband as well as the wife to secure a house, so that the husband and wife could live together. The attempts failed and the wife took out execution of the maintenance decree in 1961, 1964 and in 1967.

4. That there were some attempts by both sides, cannot be denied. But the plea on behalf of the wife is that the husband was not willing to pay the advance towards rent required, and that he was always demanding his father-in-law to pay the advance. The lower appellate Court accepted the case of the wife that the husband did not make real attempts to take on rent a separate house for the residence of the husband and the wife. This finding cannot be interfered with in second appeal. Mr. O. V. Baluswami, the learned counsel for the husband, submitted that material fact was not taken into account by the lower appellate Court and that would be a circumstance which the court should consider. He submitted that, even on the admission of the wife, a house was purchased by the husband in 1962 and an invitation by the mother-in-law to the wife to join the husband was not accepted. There is no doubt of the admission by the wife to this effect. But, in appreciating this admission in the background of the previous history, it should be noted that the trouble arose because of the presence of the parents of the husband. The compromise decree provided that the husband should take a separate house for the residence of him and the wife. The evidence given by the husband that he invited the wife in 1964, was not accepted by the lower appellate Court. In the circumstances, even if the mother-in-law had invited the wife to come and join the husband, that would not be a circumstance which would be enough to find that her refusal to live with the husband is unjustified. I am satisfied, on the facts of this case, that there are no grounds for not accepting the finding of the lower appellate Court that the husband has not succeeded in establishing that the wife, without reasonable excuse, had withdrawn from the society of her husband.

5. This finding leads to the question of law raised by the learned counsel for the husband-appellant that, after passing of the Hindu Marriage Act (Act 25 of 1955), in an action f

Click Here to Read the rest of this document