The court's interpretation of "cruelty" under Section 10(1)(b) of the Hindu Marriage Act and the relevance of the petitioner's conduct in determining whether the respondent had a reasonable excuse for withdrawing from the petitioner's society under Section 9(1) of the Act.

A.N.Grover, J.

1. This is a wifes appeal against a decree for restitution of conjugal rights which has been granted in favour of the husband under the provisions of the Hindu Marriage Act, 1955 . The marriage took place between the parties about 14 or 15 years ago. Two and a half years prior to the filing of the petition for restitution, the appellant lost her sight of one eye. According to her version she was always subjected to cruel treatment and she lost her eyesight because of an injury inflicted on her by her husband in one of the beatings given to her. According to the respondent the appellant had a squint when she was married and then also hot eyesight was weak and she could not see much.

It is alleged by the appellant that about two years ago a Panchayat came to her husbands home to remonstrate with him, but he gave slaps to her in the presence of the members of the Panchayat and they were turned away. She was being kept in illegal confinement by the husband and her mother had to apply to the competent Magistrate for warrants of search under Section 100 of the Code of Criminal Procedure.

Pursuant to those warrants the wife was produced before the Magistrate First Class, Amloh. She made a statement there on 14-8-1956 making an allegation that the husband was treating her very badly and was forcing her to have sexual relations with his own brother Chhajju Singh and that he used to let other persons loose on her for the purpose of misconduct.

When she made the statement she was pregnant. She was allowed by the Magistrate to accompany her mother. An application under Section 9 of the Hindu Marriage Act was filed by the respondent soon after in September 1958. The only issue that was framed by the trial Court was as follows :

"Whether the petitioner has treated the respondent with such cruelty as to cause a reasonable apprehension in the mind of the respondent that it will be harmful and injurious for the respondent to live with the applicant?"

The trial Court decided the issue against the wife on the ground that cruelty of the nature covered by the aforesaid issue had not been established. The version of the wife with regard to the injury to her eye was not accepted. As regards the other allegation that the appellant was being forced to commission of sexual intercourse with the husbands brother Chhajju Singh, the trial Court considered that it had to be disregarded as in her statement in Court all that she stated was that her husband wanted her to marry his brother,

2. It is contended on behalf of the appellant that the Court below was in error in attaching importance to the omission with regard to the infliction of injury to the eye in the statement made by the wife in the Court of the Magistrate on 14-8-1956, in connection with the proceedings under Section 100 of the Code of Criminal Procedure. It is pointed out that the said statement was neither relevant nor admissible in the present proceedings. It contained no admission on the part of the wife with regard to the non-infliction of the injury to the eye, nor was it admissible and relevant under any of the provisions of the Indian Evidence Act. No effort had been made to contradict the wife under Section 145 of the Evidence Act by her previous statement on the point. There can he little doubt that the Court below was not justified in taking into consideration the previous statement of the wife made on 14-8-1956 on account of the aforesaid reasons. Even if her previous statement is excluded from consideration on the point, the question still remains whether the wife has succeeded in showing that the injury to her eye was inflicted by her husband as a result of which she lost her eyesight so far as that eye was concerned. The Court below has considered the medical evidence which had been produced as also the other circumstances, and it appears that its appreciation of evidence is in no way wrong or defective.

3. It is, however, an admitted fact that the mother o