A wife has a reasonable excuse to live apart from her husband if the husband is of weak intellect, sexually impotent, treats her with cruelty, or if the husband's father has bad intentions towards her.

( 1 ) THIS first appeal filed by Smt. Mango defendant arises out of the judgment and decree passed by the Civil Judge, Moradabad, in the suit of the husband-respondent filed under Section 9 of the hindu Marriage Act, 1955.

( 2 ) THE admitted facts of the case are that the appellant was married to the respondent in Asarh, 1955, and a few months after, the Gauna ceremony took place in Phagun. The parties lived as husband and wife, at the husbands residence in Amroha for a few days. Sometime in the month of Bhadon, 1956, the uncle of the appellant, Chuttan Singh came to the respondents house and fetched the appellant away. In spite of several attempts made on behalf of the respondent the parents of the appellant did not permit her to go to her husbands house, and it was stated that the wife was keeping away from the husband without any reasonable excuse and the plaintiff had a right to obtain a decree for restitution of conjugal rights.

( 3 ) THE appellant contested the suit, inter alia, on the grounds that the plaintiff was not the author of the suit and that the same had been instituted at the instance of his father. The plaintiff-respondent was said to be a man of weak intellect, who was sexually impotent, who deserted the appellant and treated her with cruelty. It was further stated that the father of the respondent had an evil eye on the respondent and as he was bent upon outraging the modesty of the appellant, it was not safe for the appellant to live in the house of the husband. Allegations of mal-treatment and indescent behaviour both on the part of the respondent as well as his father were also made.

( 4 ) THE learned Civil Judge, who heard the petition, overruled the defence and passed a decree for restitution of conjugal rights, and it is against this order that the present appeal has been instituted by the wife.

( 5 ) THE arguments in the case were partly heard on 6th April, 1961, when the respondents learned counsel proposed that it was a fit case an which an attempt at reconciliation of the relations should be made by calling both the husband and wife to Court at the cost of the respondent. This suggestion was accepted and thereafter the wife attended the Court on 27th, April, 1961, but on that date the respondent could not come, as he was said to be bed-ridden and unable to come to court. The case was listed for hearing on 2nd May, 1961, and on that date the respondent put in appearance, who was put a few questions, which could not be answered satisfactorily. The arguments in the case were again heard today.

( 6 ) IT has been contended by the appellants learned counsel that the lower Court has erred in brushing aside the statement of the plaintiff-respondent recorded under Order 10, Rule 2 Civil procedure Code and in placing reliance upon the evidence and that if the court had given due weight to the statement of the plaintiff under Order 10 Rule 2, Civil procedure Code it would have been found that the plaintiff was a man of weak intellect who was unable to keep and support his wife; and in any case, when the wife is now living apart (with her parents) there exists a reasonable excuse for her living apart. It is also his contention that the plaintiff has no legal right to obtain a decree and in fact lie is a person of weak sexual potency, who allows approaches to be made to his wife by others including his father. It is also his submission that the respondent has been guilty of legal cruelty and that the respondent is in no way entitled to a decree for restitution of conjugal rights.

( 7 ) SRI J. N. Chatterji, learned counsel for the respondent has on the other hand submitted that a statement recorded under Order 10, Rule 2, Civil Procedure Code cannot take the place of evidence. It is simply a statement in clarification of pleadings and when, the plaintiff-respondent has given, a statement on oath, that statement is entitled to have a greater weight than the statement under Order 10, Rule 2 Civil P