A wife is justified in leaving her husband's house if she is subjected to cruelty or neglect. A husband cannot file a petition for restitution of conjugal rights if he has deserted his wife for more than two years. A delay in filing a petition for restitution of conjugal rights may be a ground for dismissal under Section 23 of the Hindu Marriage Act.

1. Teja Singh appellant applied under section 9 of the Hindu Marriage Act (No. 25 of 1955), for restitution of conjugal rights alleging that he was married to the respondent Surjit Kaur about 13 years back and they lived together as husband and wife for about 3 years. The respondent thereafter left him of her own accord and started living separately in spite of his repeated requests. On the other hand the respondent filed an application under section 488, Criminal Procedure Code, in a Court at Ludhiana and obtained an order of maintenance at the rate of Rs. 30/- per mensem against the appellant. The application the marriage but averred that she was maltreated by the appellant at the instance of his brothers wife.

2. As a result of that he turned her out of his house after giving her beating and never took care of her thereafter. She denied that the appellant ever made any attempt to bring her back, but asserted that her father along with some respectables of the village unsuccessfully approached the appellant with a request that the should take her back to his house. She also pleaded that she had been totally neglected by the appellant for a period of six or seven years and it was because of this that she had to make an application under section 488, Criminal Procedure Code, against the appellant. Her contention was that this application was made by the appellant only to avoid his liability to pay the maintenance fixed by the Court.

On the pleadings of the parties the following issues were from. 1. Whether the respondent has withdrawn from the society of the society of the petitioner without sufficient cause?

2. Whether the applicant has been guilty of cruelty towards the respondent? If so, its effect?

3. What is the effect of the petition having been made after the expiry of 6 or 7 years from the date of the respondent from the society of the petitioner?

4. Whether the applicant deserted the respondent for more than 2 years before the making of his application?

5. Relief.

After recording evidence Shri Radha Krishan, Sub-Judge 1st class, Ludhiana found issues Nos. 1, 2 and 3 against the appellant and issue No. 4 in favour of the respondent, and dismissed the application vide his order dated the 13th October, 1960. Feeling aggrieved against that order Teja Singh has approached this Court in appeal.

3. The case was argued at considerable length principally on the point whether the respondent had reasonable excuse or cause to withdraw from the society of her husband and leave his house, and whether Teja Singh had deserted her for a continuous period of not less than two years. What is meant by desertion has been fully explained in Bininchandra Shah V/s. Prabhavati (S) AIR 1957 SC 176, where their Lordships of the Supreme Court observed that,

"for the offence of desertion two essential conditions must be there, namely, (1) the factum of separation and (20 the intention to bring cohabitation permanently to an end. Similarly, two elements are essential so far as the deserted spouse is concerned (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. Desertion is a matter of inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation."

In Gurdev Kaur V/s. Sarwan Singh, AIR 1956 Punj 162, it was held that "if a wife has been found entitled to separate maintenance on the ground that she has justifiable cause for living separately that right cannot be defeated by the husband subsequently filing a suit for restitution under section 9 of the Hindu Marriage Act and by showing that the wife cannot estab