A wife is justified in refusing to cohabit with her husband if she is forced against her will to submit herself to unnatural intercourse by her husband.

S.Saghir Ahmad, J.

1. On 1-4-83 I passed the following order : "For the reasons to be recorded later, the appeal is allowed. The judgment and decree passed by the courts below are set aside and the suit is remanded to the trial Court for a fresh decision in accordance with law and in the light of the observations made in the judgment. The parties shall bear their own costs." I now proceed to give my reasons.

2. This is defendant's second appeal. The suit was filed by the respondent for restitution of conjugal rights against the present appellant and her parents. It was stated in the plaint that appellant was the wife of the respondent. She had been living with him and performing marital obligations. Out of this wedlock a daughter was born but she later died. It was stated in para-13 of the plaint that the defendant was pregnant. Her father, who was defendant no. 2 in the suit, had taken her away to his house in the year 1975 and since then she had been staying there and had not returned to the plaintiff-respondent.

The suit was contested. It was set out by the appellant in her written statement that she had already filed an application against the respondent in the Court of Judicial Magistrate tor maintenance and it was as a counter blast that the suit for restitution of conjugal rights was instituted by the respondent against her. It was also stated that respondent wanted to satisfy his sexual desire by unnatural means which was refused by her. The plaintiff-respondent, therefore, used to beat her and ultimately one day he turned her out of his house.

3. The trial court on a consideration of the evidence on record came to the conclusion that the respondent wanted to have unnatural sexual intercourse with the appellant and on her refusal, he beat her and turned her out of his house. THE suit was accordingly dismissed.

4. The findings recorded by the trial Court were reversed by the lower appellate court in appeal which was filed by the present respondent. THE lower appellate. Court decreed the suit. THE defendant has now come up in second appeal.

I have heard the learned counsel for the parties.

5. Sri S. P. Shukla, learned counsel for the appellant, has contended that a wife would be justified in refusing to live with her husband if she was forced against her will to submit herself to unnatural intercourse by her husband. The act would amount to mental and physical cruelty and, therefore, the wife would have a lawful cause in refusing to cohabit with The husband. The learned Counsel for the appellant has also contended that the learned District Judge was not justified in placing reliance upon a certified copy of the application filed by the appellant before the Judicial Magistrate for the grant of maintenance, as the said application had not been brought on record in accordance with law nor had it been exhibited by the trial court. He has also contended that in any case contents of this application were not put to the appellant when she was in the witnesses-box and for this reason also the tacts set out in that application could not be treated to be substantive evidence in the instant suit.

6. The merits of the contention may now be examined. A suit for restitution of conjugal rights can be filed by the husband where a wife without lawful cause refuses to cohabit with him. In a suit for this nature, therefore, the courts have to determine whether the wife has refused to cohabit with the husband on account of any lawful cause.

7. The tendency to have carnal intercourse against the order of nature is the manifestation of sexual perversion. It may seriously affect the compatibility of disposition which is the foundation of successful married life. THE unnatural act of sexual intercourse will certainly not result in complete and total satisfaction of the biological need of a woman and, therefore, the act may evoke feelings of hatred in her and may also generate repulsive attitude towards her husband. THE so-called sex act,