Restitution of conjugal rights cannot be granted where the wife has established a defense of cruelty and ill-treatment by her mother-in-law, and where the husband has failed to provide suitable accommodation for the wife at his place of posting.

S. ACHARYA, J.

( 1 ) THE defendant, who admittedly is the legally married wife of the plaintiff, has preferred this appeal against the judgment and decree for restitution of conjugal rights passed by the court below.

( 2 ) THE plaintiff-respondent filed an application under Section 9 of the Hindu marriage Act, 1955 praying for a decree against the defendant for restitution of conjugal rights. The plaintiff alleged that he and the defendant lived together as husband and wife in the ancestral house of the plaintiff in village Bartana, and on 13-7-1969 she went away to her father's house, and since that time she is not returning therefrom to the house of the plaintiff on some false pretexts in spite of repeated requests of the plaintiff. It is further alleged that the defendant, without returning to the plaintiff's house in village Bartana, is insisting on the plaintiff to go to her father's house at Sarupal, and to give money to her father for her sustenance in her father's house,

( 3 ) THE defendant-appellant, in her written statement, denied all the plaintiff's allegations against her. According to her, she, after marriage, lived in the plaintiff's paternal house at Bartana for a long time and performed all domestic works. The plaintiff mostly remained absent from Bartana, and the mother-inlaw of the defendant all along ill-treated and abused the defendant on the allegation that the defendant's father cheated the plaintiff and his family members by not giving the promised dowry to the latter. The mother-in-law of the defendant also poisoned the plaintiff's ears, whenever he used to come home by making false allegations against the defendant. Due to the ill-treatment and torture some behaviour meted out to the defendant, she lost her health and suffered badly from nervous debility, and so she had to come away from her father-in-law's house to her own father's house for treatment. While she was at her father's house, she requested the plaintiff on various occasions to take her to a suitable place for her treatment, but the plaintiff did not respond to the same. After some time, the defendant-appellant also requested the plaintiff to take her to the place where he was serving so that they could live together, but her request to this effect also was not heeded. The plaintiff wrote many harsh and unkind letters to the defendant insisting on her return to his parents' house though he himself was not staying at that place on the above averments she prayed for the dismissal of the plaintiff's prayer for restitution of conjugal rights.

( 4 ) THE court below has arrived at the findings that the defendant has not been able to substantiate her case of coming away to her father's house due to her illness or establish her allegation of ill-treatment by her mother-in-law; and that the husband (plaintiff) has discharged the legal burden that lay on him to get a decree for restitution of conjugal rights.

( 5 ) ON a perusal of the impugned judgment and the evidence on record I find that the court below has neither appreciated the evidence on record or the questions involved for consideration in the correct perspective.

( 6 ) THE petitioner, for restitution of conjugal rights, must show that there is a bona fide desire on his part to resume matrimonial cohabitation and to perform his duties of matrimonial life. The petitioner has to show that he is sincere in the above direction. Moreover, before passing a decree for restitution of conjugal rights the court must be satisfied that the respondent has, without reasonable excuse, withdrawn from the society of the petitioner and there is no legal ground why the decree should not be passed. Ill-treatment or cruelty, so as to make it Impossible for the wife to live with her husband or in her husband's house, is, apart from other grounds, sufficient to dismiss the husband's petition for restitution of conjugal rights. It is well settled that cruelty in the legal sense need not necessarily be physic