A husband who has married a second time is not entitled to a decree for restitution of conjugal rights, and the wife is entitled to separate residence and maintenance under the Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946 (Act XIX of 1946).

DAS, J.

( 1 ) THIS is a husband's second appeal arising out of his suit for restitution of conjugal rights. The wile of the appellant was defendant 1 and his parents were defendants 2 and 3. The plaintiff married the first defendant on 3-2-49. She lived udayanath Dakhin Ray vs. Shivapriya Devi and Ors. (07. 11. 1956 -ORIHC) Page 2 of 5 yanath Dakhin Ray vs. Shivapriya Devi and Ors. (07. 11. 1956 -ORIHC) Page 2 of 5 in her husband's house until 19-2-49 when she left for her father's place. The plaintiff's case is that since then she is living with defendants 2 and 3. and in spite of repeated requests did not come back to his house Hence the plaintiff filed the suit on 17-2-50. The defendants in their written statement admitted the marriage of the plaintiff with the 1st. defendant, and averred that due to financial difficulties there was some delay in sending the first defendant to the house of her husband and when defendant 2, that is the father of defendant 1 was getting ready to send her to her husband, he received information that the plaintiff had married for the second time to the daughter of one Chandrakanta Beura of Cutt-ack. Accordingly, it was averred that the plaintiff was not entitled to a decree for restitution of conjugal rights under the provisions of the Hindu Married Women's Right to separate Residence and Maintenance Act. 1946 (Act. XIX of 1946), hereinafter referred to as "the Act. "

( 2 ) THE learned Munsif who tried the suit, on a consideration of the evidence before him, came to the finding that the plaintiff married for the second time the daughter of Chandrakanta Beura of Cuttak. said to be railway employee, and this marriage undoubtedly took place after the institution of the suit. He further found that the second wife was dead by the time the suit came up for hearing, and according to the defendants, the plaintiff had taken a third wife who is a daughter of Sri Manmath Nath Chaudhury, a pleader of Balasore. Both the courts below have retrained from considering the third marriage of the plaintiff because the defendants had not filed any additional written statement after the death of the second wife. On appeal, the factum of second marriage was not challenged by the plaintiff be-fore the court of appeal below. He only confined himself to the question of law that arose for deci-'sion' in the case. The lower appellate court, in spite on a consideration of the overwhelming evidence and the documents, such as the death register, the electoral roll and the evidence of respectable persons of the locality, came to the conclusion that there was in fact a second marriage by the plaintiff. The learned Subordinate Judge also took into consideration the fact of the non-examination of the plaintiff to deny the second marriage; and accordingly, he dismissed the plaintiff's suit. It is against this decision that the present second appeal is directed.

( 3 ) MR. S. K. Dey, learned counsel for the appellant, contended that the plaintiff, in spite of his marriage for the second time, is entitled to a decree for restitution of conjugal rights, because bv the date on which the suit was instituted, he had not married for the second time, and it is also a fact that the second wife had died before the hearing of the suit. Therefore, on the cause of action that arose on the date of the suit, he is entitled to a decree. Secondly, his contention was that there is nothing in the Act to prevent the Kissing of a decree for restitution of conjugal rights. There may be a new right conferred on the defendant 1 for claiming separate residence and maintenance, but that does not in any way, militate against the plaintiff's contention for a decree for restitution of conjugal rights.

( 4 ) MR. Dey, to begin with, relied upon a decision of this Court reported in Anjani dei v. Krushna Chandra ILR (1954) Cut 14: (AIR 1954 Orissa 117) (A) and very candidly conceded that the judgment does not very much support his contention. That was a case i