JUDGMENT

R.N. Gurtu, J. - This is an appeal by the wife, Smt. Sughra. Her husband brought a suit for restitution(sic) of conjugal rights and an injunction.

2. The husband's case was that Smt. Sughra was his duly married wife and that she had come and lived with him after the marriage but that some eleven months before the institution of the suit the wife's father came and took her away with him on the pretext of a ceremony. His case further was that when he went to call back his wife, she, under the influence of her father, refused to come back.

3. The defence was that the Plaintiff had divorced the wife and had treated her cruelly.

4. Both the courts below have negatived cruelty. On the question of divorce, the conclusion of the two courts below is that divorce has not been established as it was not pronounced thrice but only twice. Both the courts below seem to have believed D W. Sulaiman and have relied upon the following statement mad by him:

Baswal adalat kaha ki vadi ne kaha tha ki main usko tilaq deta hun lejaeye- usko tilaq deta hun lejaeye.

5. The conclusion of the court below was that the divorce was pronounced only twice and was, therefore, not effective in law. It is not denied that this was a case of Talakulbidaat. That form of divorce may consist of a single pronouncement made during a "Tuhr" clearly indicating an intention irrevocably to dissolve the marriage, for example, the husband may say, "I divorce thee irrevocably." The essence of this form of divorce is that there must be an element of irrevocability in the single pronouncement. It is in evidence that the husband had the belief that the wife was suffering from tuberculosis. It is also in evidence that he was dissatisfied with his wife. In the back ground of this state of affairs, when the husband said "main usko tilaq deta hun lejaeye", it is clear that he intended to convey by the word "lejaeye" that he had irrevocably indicated his decision to dissolve the marriage. Not only did he say this but he reaffirmed it a second time and on the second occasion also said "lejaeye". The witnesses were asked to take the wife away. If the husband had wished to leave to himself the option of not making a third pronouncement and of reconsidering the matter over again, he would not have twice insisted on the wife being taken away. This aspect of the matter has been ignored by the Court below and the evidence has been clearly misread. The effect of the first sentence uttered by Sulaiman is that the pronouncement by the husband had the character of irrevocability. In Fazlur Rahman Vs. Musammat Ayasha and Others, AIR 1929 Patna 81 it has been declared that it is for the husband to prove that the wife was not in a state of Tuhr when the divorce was pronounced. The husband has not proved this. In my view, in this case, the evidence clearly establishes that the first pronouncement made was made indicating an intention irrevocably to dissolve the marriage. I find accordingly. It has become necessary for me to record a finding because the requirements of Talak -ul-bidaat have not been clearly kept in view and the effect of the use of the word "lejaeye" has not been considered.

6. Accordingly, I allow this appeal, set aside the decree of both the courts below and dismiss the Plaintiff's suit, parties bearing their own costs throughout.