Relief claimed by third wife on the ground of husband living with second wife.

This is a suit for restitution of conjugal rights by the husband against his third wife. It would appear that he married the third wife when the second wife was alive. He had abandoned her and contracted this marriage. He was living for sometime with the third wife and when she became pregnant sent her to parents’ home for confinement. The husband thereupon called back the second wife to live with him and has since then been living with her. The third wife is the appellant before me. In the first Court, she filed a written statement setting out that her jewels had been taken away by the husband and not returned to her and he has failed to account to her for the proceeds of her lands which he was managing. She also set up that she was told at the time of the marriage that the husband was not living with the second wife and (feat he had severed his connections with her and settled her maintenance claim and separated from her. Before the learned District Munsiff it is stated that the first defendant who is the appellant before me was present in Court and expressed her willingness to join her husband. So also her father defendant 2. The learned Judge thereupon took no evidence and decreed the suit on the ground that there was no defence to be tried. He observed that the claim for jewels and profits of land would be determined in the connected suit which was then pending and posted along with the present suit. On appeal a ground was taken that the District Munsiff should have taken evidence. It does not appear whether it was really pressed before the learned Subordinate Judge, because I find no reference to this in the appellate judgement. The appellate Court agreed with the trial Court that there was no defence to be tried at all in view of the willingness of the wife to join the husband and livewith him. He also stated that the controversy about the jewels will be decided in the other suit. He confirmed accordingly the decree of the trial Court.

In the second appeal an affidavit has been filed here by the lady wherein I find it stated that the District Munsiff misunderstood what she stated before him in Court and that it was not an unconditional willingness to join the husband. In paragraph 4 of the affidavit she states that her marriage was on the distinct understanding that the husband had completely broken off with the second wife and that he would have nothing to do with her thereafter and that contrary to this arrangement the husband brought her back four years back and has since then been living with her and she bore him also two children and that the husband also conveyed all his properties in favour of that second wife by a registered deed of gift dated the 8th February, 1943. There is no counter affidavit in answer to mis.

It is argued now that the case should be sent back for trial and for evidence being taken. My attention is also drawn to an Act of the Central Legislature, Act XIX of 1946 which enables a Hindu married woman to have a right to separate residence and maintenance under certain circumstances. Section 2, sub-clauses (4) and (7) are relied upon. Sub-clause (4) gives her the right for separate residence and maintenance if the husband marries again. This clause can only apply if there is a marriage subsequent to the marriage with the lady who is now asking for separate residence and maintenance. In this case the third wife now wants to rely upon this provision but there has been no marriage subsequent to the marriage with her and so this clause cannot be invoked in her favour. Sub-clause (7) enables her to get separate residence and maintenance for any other justifiable cause. It is argued that it would be a justifiable cause if the third wife had been married on the distinct understanding that the husband once for all severed his connection with the second wife and would have nothing more to do with her and that he and the third wife alone would be living together. Now it is alleged that the husband ha