The court has the discretion to refuse a decree for restitution of conjugal rights even if the conditions in Section 9 of the Hindu Marriage Act are satisfied, considering the entire conduct of the parties and the possibility of the parties living together happily.

( 1 ) THIS appeal from the decision, of the Additional District Judge, Chhindwara dated 11-4-1961 has been filed by the husband, whose petition for restitution of conjugal rights against the respondent has been rejected. Another appeal (Miscellaneous (first) Appeal No. 26 of 1961) has been. filed by him against the order awarding interim maintenance at the rats of Rs. 25/- per month and for costs amounting to Rs 100/- to the respondent for defending the petition under section 24 of the Hindu Marriage Act (hereinafter called the Act) on 30-1-1961. Both these appeals will be disposed of by this judgment

( 2 ) IN his petition, the appellant had stated that he was married to the respondent on 26-4-1955; that the respondent lived happily with the appellant for about a year and half at Chhindwara; that the appellant then asked the respondent to accompany him to live at Ramtek but she refused and the appellant went alone to ramtek; that he himself came to take respondent on some occasions but she did not go with him; that he sent a notice on 9-8-1958 to her and her parents requiring her return; that by the reply dated 18-8-1958 (Ex. P. 6) she refused to come back and is still living with her parents at Chhindwara.

( 3 ) THE respondent opposed the petition, inter alia, on the ground that the appellant actually deserted her within the meaning of Section 9 of the Act; that he was treating her with cruelty and in an uncivilised manner; that the appellant had left her when her pregnancy was of three months' duration and made no arrangement for her delivery; that he was a drunkard and was addicted to gambling; and that he used to neglect providing her even with food and used to take his food outside in some hotel. In short, the petition of the appellant was opposed on the grounds of desertion and legal cruelty.

( 4 ) IN our view, this appeal must be rejected. The wording of Section 9 (1) of the act makes it clear that even when the conditions stated in that provision are satisfied, it is in the discretion of the court whether or not to pass a decree for restitution of conjugal rights. The discretion vested in court has to be exercised with caution and after due deliberation. The court has to consider the entire conduct of the parties to judge whether the petitioner deserves to get the relief and whether such relief is not unreasonable in the particular case against the respondent. In Alopbai v. Ramphal, 1961 Jab LJ 1513: (AIR 1962 Madh Pra 211) it was observed that where the circumstances of the case disclose that there is no possibility of the parties living together even in a state of happiness, a decree for restitution of conjugal rights would be unjustified. In Mt. Sita Kumar v. Debidin kumbhar, AIR 1933 Nag 5 it was held that "the emancipation of woman in recent years renders it necessary to restrict decrees for restitution of conjugal rights to cases in which there is a clear precedent for such a course. " the same view was taken by a Division Bench of this Court in Smt. Ganga v. Meghsingh, F. A. No. 207 of 1959, D/- 20-1-1962.

( 5 ) NOW, in the present case, though it is possible to say with some force that as the demand for the return of the wife was made only after one year of her leaving the husband's house, animus deserendi, as explained in Bipinchandra v. Prabhavati, (S) AIR 1957 SC 176 has not been established the ground of desertion for basing the petition was not available, yet there is positive evidence to show that the wife used to be habitually beaten by the petitioner appellant. She has complained that the petitioner even neglected to provide her with food. It has been established by the testimony of D. W. 2 Basodilal, D. W. 4 Wazirkhan and the respondent herself that the husband was addicted to drinking wine. It has also been established that his means are quite limited. According to the petitioner he earns only about Rs. 30/- per month and according to the respondent his monthly income was about Rs. 75/ -.