JUDGMENT :This Is an appeal preferred by the husband from the appellate judgment and decree of the learned District Judge of Ballia, affirming the decree of the Court of first instance, dismissing the petition for grant of divorce and in the alternative for judicial separation.

2. Admittedly the petitioner-appellant and the respondent were married on 7-2-1960 according to Hindu rites. For some time the husband and wife lived together amicably. According to the case of the husband, in his absence the wife went away on 30th of July 1960 without any cause and without his consent with her father and despite repeated efforts made by him for her to come back, she refused. A notice dated 12-8-1960 was served by the husband on the wife asking her to return. It appears that the wife had conceived when she was living with her husband soon after the marriage and a son was born to her on 25-3-1961 at her father's house. On 28-7-1961 the husband filed a suit against the wife for restitution of conjugal rights. This suit was defended by the wife on the ground that she was turned out of the house by the husband and her mother-in-law after being beaten on 30-7-1960 and her life will be in danger at the hands of her husband and others if she were to return to him. On the finding that the wife was turned out on 30-7-1960 after being cruelly treated the trial court dismissed the suit for restitution of Conjugal rights. An appeal from the judgment and decree in the said suit was finally dismissed by the High Court by its judgment dated 29-4-1966 and the finding of fact that the wife was turned out from the house of the husband on 30-7-1960 after having been beaten was affirmed. Then on 8-7-1967 the husband presented a petition under Sections 10 and 13 of the Hindu Marriage Act for a decree for divorce and in the

alternative for judicial separation against the wife.

3. The allegation made for the purpose of the relief for divorce was that the wife voluntarily stayed away from the husband being wayward and unfaithful. A charge of adultery seems to have been hinted, though not specifically stated, in the petition.

4. For the purpose of judicial separation it was alleged that on 30-7-1960 the wife went away with her father without any reasonable cause and without the permission of the husband and since then never returned despite repeated efforts of the husband.

5. In her defence the wife denied the allegations of unfaithfulness and waywardness. She set up a counter case that her husband had married a second time and was living with the second wife. It was further pleaded that on 30-7-1960 she was cruelly beaten as she was unable due to illness to wash utensils and carry out other household chores, turned out of the house and she went away to her father's house. A plea was also raised that the finding in the previous suit for restitution of conjugal rights operated as res judicata as regards the plea of desertion.

6. At the trial the husband was not able to establish by any evidence that the wife was unfaithful or guilty of such misconduct as to deserve a divorce. The suit proceeded mainly as a suit for judicial separation and the main issue between the parties was whether on 30-7-1960 the wife left the house of her husband without reasonable cause and without the consent of the husband or did she leave under circumstances which made out a reasonable cause. The trial Court found that the case of the wife was true, she was turned out of the house of her husband by the mother-in-law and the husband, after being cruelly beaten by them and a domestic servant. It was also held that the finding in the previous suit for restitution of conjugal rights on this question of fact operated as res judicata. The result was that the husband's suit was dismissed.

7. On appeal by the husband from the judgment and decree of the trial court the learned District Judge of Ballia agreeing with the view of the learned Civil Judge that the finding on the material issue of fact reco

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