A wife is justified in refusing to live with her husband if she has been subjected to cruelty by her mother-in-law and if the husband has failed to provide a separate residence for her.

Judgement

R. N. MISRA, J. :- It is a husband s appeal under Art.4 of the Orissa High Court Order read with Cl.10 of the Letters Patent and is directed against the reversing judgement of our learned brother Acharya, J.

2. In March, 1967, the appellant married the respondent. They lived together till July, 1969, when the wife went away to her father s house and did not return. On 17th March, 1970. the husband applied for restitution of conjugal rights to the learned Subordinate Judge at Balasore. The wife resisted the claim by contending that her mother-in-law was an ill-tempered lady and she very often used to hurl abuses at the defendant in very filthy and objectionable language on some pretext or other as also on the ground that the defendant s parents had failed to pay the dowry as promised. The husband who was working as a teacher at a place away from home was occasionally coming home and the mother-in-law was poisoning his ears against the defendant. She pleaded that on account of such constant rebukes and abuses, she suffered from nervous debility and ultimately became ill. At the trial, plaintiff examined himself and 3 other witnesses and the defendant examined herself and 2 other witnesses including her brother. The learned trial Judge proceeded on the footing that the wife had a legal duty to live with her husband and the defendant had failed to substantiate the plea of cruelty, and being satisfied that the husband was keen to have the company of the wife granted a decree for conjugal rights.

3. Upon wife s appeal to this Court, the learned single Judge has come to hold :

"On the oral and documentary evidence on record I am inclined to believe the case put forward by the defendant-appellant that during her stay in her father-in-law s house, her mother-in-law ill-treated her and made her stay in that house a miserable proposition. From the tone of the husband s letter to his wife it is quite evident that the mother-in-law of the defendant was also successful in poisoning the ears of his son, the plaintiff, against his wife. On the above premises one cannot find fault with the defendant s disinclination to go back to her father-in-law s house, especially when her husband was not staying at that place. On the materials on record I am also inclined to take the view that the plaintiff instead of being particular about leading a matrimonial life with his wife, the defendant-appellant was only insisting on the defendant to return to her father-in-law s house possibly only to satisfy the wishes of the plaintiff s parents. Consideration to satisfy the wishes of the parents without expressing and/or indicating a sincere and genuine desire for restitution of conjual rights, with all its legal trappings, obligations and duties, cannot enable a person to get a decree as prayed for in this suit."

As it appears from the judgement of the learned single Judge, an attempt for reconciliation was made and the wife seems to have agreed to return to the husband in case the husband was able to arrange a separate residence for the couple where she could live in peace in the company of the husband. The husband, however, pleaded inability even when several adjournments were granted and the learned single Judge, therefore, ultimately reversed the decree and dismissed the suit. The judgement is reported in AIR 1977 Orissa 132, Pramilabala v. Rabindranath. This appeal has been carried by the husband against the said reversing decree.

4. Counsel for the appellant wanted leave of the Court to raise a question which had not been mooted in the first appeal, namely, that the appeal was not maintainable in this Court. Reliance is placed on a Bench decision of this Court in the case of Nrusingh Charan Nayak v. Smt. Hemant Kumari Nayak, 45 Cut LT 558 : (AIR 1978 Orissa 163), to support that plea. In the instant case the suit was valued at Rs. 10/- and the first appeal was given the same valuation. The decree being of the learned Subordinate Judge, the appeal, i