A husband cannot claim restitution of conjugal rights while simultaneously making allegations against his wife's character, as such allegations amount to cruelty and negate the desire for cohabitation.

JUDGMENT :- This is a wifes Second Appeal from a decree for restitution of conjugal rights that was passed against her originally by the Court of the Civil Judge, Shahjahanpur on the 29th October, 1979 and was confirmed on the 28th Aug. 1980 by the Court of the Fifth (Fourth?) Addl. District Judge. Shahjahanpur, on appeal. The following are the questions which were formulated at the hearing of the appeal under Order 41 Rule 11 of the Code of Civil Procedure, in this Court :-

"(1) Whether the pleas taken by the husband in the alternative, namely, that the wife had withdrawn from his society without reasonable excuse and he wanted her back by a decree of restitution of conjugal rights, on the one hand, and that the wife intended to re-marry and he had developed apprehension from her as to the safety of person and property and was even suspicious of her character and claimed dissolution of marriage on those grounds by a decree of divorce, on the other hand, were self-destructive and no decree for restitution of conjugal rights could have been passed under these circumstances."

"(2) Whether the finding of the two Courts below that the wife had no reasonable excuse for living away from the husband is vitiated in law."

"(3) Whether the petition filed by the husband was a counterblast to the wifes application under Sec.125, Cr. P. C. and was liable to be dismissed on this ground alone."

2. The petition in this case made by the husband who is the respondent in this Court, is a strange amalgam of two self-contradictory or mutually exclusive and opposite remedies provided by Sections 9 and 13 of the Hindu Marriage Act. Just below the title the petition specifies Secs.9 and 13 of the Hindu Marriage Act, suggesting thereby, though without saying so expressly, that it was a petition made for relief under Secs.9 and 13 of the Hindu Marriage Act. The first paragraph of the petition states that the petitioner was married to the appellant on the 28th April, 1977 in accordance with Hindu customary rites. The second paragraph states that the petitioner and the appellant were Hindus at the time of marriage and continued to be Hindus. The third paragraph states that the petitioner is a Token-porter in the Railway Department and followed a regular life. The fourth paragraph states that the appellant is living separately for the last nine months with her parents. The fifth paragraph states that the petitioner himself, his younger brother Nem Chand and mother went to call the appellant many a time but she did not listen to them and on the last occasion finally refused to come. The sixth paragraph states that the appellants father wanted to marry her again elsewhere to which she was agreeable. The seventh paragraph states that the appellant deliberately and without any cause refused to live with the petitioner. There was no ground for her refusal. Paragraph 8 states that the petitioner was in Government service and was in great need of a wife for his living, therefore, the need for the suit. The ninth paragraph states that the petitioner and the appellant both are young. Therefore, to maintain good conduct, it was necessary to resolve their mutual relations. Paragraph 10 states that the appellant intends to marry again. Therefore, the petitioner apprehended danger to his life and property from her. Paragraph 11 states that the character of the appellant is growing suspicious because in spite of advice she has not given up her intention of marrying again. Paragraph 12 states that the petitioner and the appellant were within jurisdiction of the Court and, therefore, the Court had jurisdiction. Paragraph 13 states that the valuation of the petition was Rs. 300/- and the court-fee paid was Rs. 37-50 P. The relief prayed for was; (a) that the petitioner may be granted against (the appellant) Bitto alias Shyamwati a decree under Sec.9 or 13 of the Hindu Marriage Act; (b) costs; and (c) any other relief.

3. I am surprised that the case so set out in the petition,

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