A decree for restitution of conjugal rights cannot be granted merely on the ground that the defendant is not opposing the suit or is ex parte. The court must be satisfied that the conditions prescribed under Section 9(1) of the Hindu Marriage Act, 1955, are met, and even then, it has the discretion to grant or refuse the decree. It is also the duty of the court to attempt reconciliation between the parties before granting any relief under the Act.

( 1 ) THIS is a Letters Patent appeal from a decision of Tare J. upholding the judgment and decree of the Additional District Judge, Narsimhapur, giving to the respondent Ramphal a decree for restitution of conjugal rights.

( 2 ) THE plaintiff's case was that he was married to the appellant Alopbai on 13th march 1950; that after the consummation of marriage the tried to bring the appellant (No. 1) to his house but respondents Nos. 2 and 3 and appellant No. 2, who were close relatives of Alopbai and with whom she was staying, did not allow alophai to come and live with him; that on 24th May 1956 while Alopbai was on her way to the house of Todalsingh (appellant No. 2) he (the plaintiff) met her and persuaded her to come and live with him; that accordingly she came to his house and lived with him for 26, days; that thereafter Todalsingh (appellant no. 2) and gomitibai (respondent No. 2), her mother, took her away from his house after instituting criminal proceedings; and that since then they were preventing Alopbai from coming to his house. Alopbai (appellant No. 1) resisted the suit by pleading that the marriage had not been consummated and that the plaintiff had ill-treated her. She prayed that the marriage he declared a nullity or that she be given a decree for judicial separation.

( 3 ) THE trial Judge decree the suit ex parte against Alopbai. He found that the marriage had been consummated and that the appellant (No. 1) had not led any evidence to support the allegations of cruelty and ill-treatment. As appellant No. 1 did not adduce any evidence the trial Judge accepted mechanically the plaintiff's statement that he had not ill-treated appellant No. 1. After making an unsuccessful effort for setting aside the ex parte decree, the appellants preferred an appeal in this court. The learned single Judge saw no ground for setting aside the ex parte decree. He came to the conclusion that as the appellants failed to appear and tender any evidence the decree passed by the learned trial Judge could not be set aside on any ground whatsoever'.

( 4 ) HAVING heard learned counsel for the parties we have formed the opinion that this case must be; remitted to the original court for a fresh trial. The appellants were present on all the dates of hearing up to 23rd February 1959, including those fixed when the record of the case was in this court in connection with a revision petition. It was on 16th March 1959 that they remained absent. The record of the suit had been received by then, but the trial Court instead on fixing a date for appearance of the parties after the receipt of the record proceeded to fix a date for evidence of the parties treating the appellants as ex parte. This order was wrong when obviously 16th March was not a date of hearing but only a date for further directions after the receipt of the record from the High Court. There was therefore good ground for setting aside the ex parte decree when the appellants presented an application for that purpose. The learned Single Judgethought that there was no ground for setting aside the ex parte decree when the appellant (No. 1) was asked to be present in Court on 1st May 1959 so as to enable the Court to bring about a reconciliation between the parties under Section 23 (2) of the Hindu marriage Act, 1955, and when she (appellant No. 1) failed to appear. The trial judge, no doubt, ordered on 16th March 1959 that appellant No. 1 should be present in Court on 1st May 1959. But this direction or the failure of the appellant to appear in response to it has no hearing whatsoever on the question or the correctness of tho decision to proceed with the suit ex parte against the appellants and on the question of setting aside the ex parte decree. In holding that appellant no. 1 could not ask for the setting aside of the ex parte decree when she chose to remain absent despite the court's specific direction to be present on 1st May 1959 the learned Single Judge overlooked the f