( 1 ) THIS second appeal has been referred to a Bench for decision by the Chief Justice as a learned single Judge asked for such a decision because of the importance of the question of law involved in the case.

( 2 ) JAMILA Khatoon, the plaintiff, was married to Tufail Ahmed, the defendant, sometime in the year 1935. In 1947 it appears that matrimonial bickerings started between the husband and wife. In 1948 the plaintiff-wife left her husband and went to live with her brother. In November, 1948, there was a complaint under Section 498 of the Indian penal Code by the husband and in this complaint the husband apparently made an allegation of unchastity against the wife. Subsequent to the complaint mentioned above, which was dimissed, the husband filed a suit in 1948 for restitution of conjugal rights. In this suit the husband unequivocally retracted the allegation which he had, apparently stupidly, made against the wife in the 498, Indian Penal Code proceedings. The suit for restitution of conjugal rights was dismissed and we are really not concerned with the grounds on which that suit was dismissed, for we are concerned with something that followed subsequently.

( 3 ) ON the 30th March, 1949, the wife filed the present suit out of which this appeal has arisen for the, dissolution of her marriage with the defendant. The suit was filed under the Dissolution of muslim Marriages Act 1939 (VIII of 1939 ). The ground on which dissolution was sought was the false imputation of unchastity by the husband to the wife. In his written statement the husband did not stand by the alleged imputation of unchastity. On the other hand, he relied on the reaction and claimed the benefit of that retraction to defeat the plaintiffs claim for divorce.

( 4 ) ON the pleadings, the Court below framed four issues; the two material issues were, first, whether the defendant had falsely charged the plaintiff with adultery, and secondly, whether that alleged charge of adultery had been retracted by the defendant. The findings of fact recorded by the Courts below, which findings are binding on us, were first that the husband-defendant did accuse the wife-plaintiff falsely of adultery, and secondly, that the husband had retracted that accusation prior to the filing of the suit out of which this appeal has arisen. We have earlier referred to the fact that in his suit for restitution of conjugal rights the husband had in effect and in substance retracted the false imputation of adultery to the wife. Even so, the courts below decreed the plaintiffs suit for dissolution of marriage because they were of the view that they were bound by the law laid down by this Court in Kalloo v. Mt. Imaman, AIR 1949 All 445 which was a single Judge decision by Mr. Justice Mushtaq Ahmad. Mr. Justice Upadhya at whose instance this case was referred to a Bench did not apparently agree with the view expressed by Mushtaq Ahmad, J. , in Kalloos case, AIR 1949 All 445, even though he did not say so in so many words in his referring order.

( 5 ) THE question which falls for our consideration is whether the retraction which was made by the husband in the instant case in his plaint in the suit for restitution if conjugal rights was a sufficiently good ground for non-suiting the plaintiff.

( 6 ) THE false imputation of adultery was not specifically one of the grounds mentioned in section 2 of the Dissolution of Muslim Marriages Act as a ground for divorce. This ground, if available to wife to ask for divorce, would be available under Clause (ix) of Section 2 of the Act, which is in these words:

"on any other ground which is recognised as valid for the dissolution of marriages under muslim law:"

There never was any doubt that false imputation of unchastity to a wife did form a recognised valid ground under the Mohamedan Law. The only question that was disputed was whether that ground for dissolution which a wife had on the husband making a false imputation of unchastity to her cease