The court can dismiss a petition for restitution of conjugal rights on the ground that the respondent did not withdraw from the society of the petitioner "without reasonable excuse" (i.e. "withdrew for a "just cause") within the meaning of Section 9(1) of the Marriage Act, despite the absence of any ground satisfying the requirements of Sub-section (2).

( 1 ) THIS is an appeal under Section 28 of the Hindu Marriage Act from a decree for restitution of conjugal rights passed in favour of the husband.

( 2 ) IN his petition under section 9 of the Hindu Marriage Act 1955. Pannalal alleged that he was married to Tulsa in or about 1953. She gave birth to a daughter in 1957, but the girl did not survive for more than two days. Tulsa's father took her to his house for Diwali festival but thereafter she did not return.

( 3 ) TULSA resisted the petition on the ground that in fact the plaintiff deserted her and he treated, her with cruelty.

( 4 ) THE learned Additional District Judge Gwalior, who tried the petition found that the plaintiff did not desert her nor did he treat her with cruelty. In the result he passed a decree in favour of the husband.

( 5 ) SHRI Dwivedi, learned counsel for the appellant, invites our attention to pannalal's stater ment. There he says that one day she requested him to escort her to her father's house and gave him to understand that she would return, with, him in the evening on the same day. He, therefore, left her at her father's house in the morning, but when he went the second time, in the evening,, to fetch her back, her parents started quarrelling with, him and Tulsa also abused him, whereupon, he returned to his house alone. This is contrary to what he said in the petition. And the suppression, of the fact that it was he who left her to her father's house is not without significance. ( 6 ) FURTHERMORE, the plaintiff admits to have beaten her on occasions more than one. He also states the reasons for this behaviour. On one occasion he beat her because she used to get up late in the morning, that is at about 7, while he wanted his meals at 6, in order to leave for his duty. Qn another occasion he beat her because she did not put on the clothes which he wanted her to do instead of others which he did not want her to put on. ' He says that he went to bring her back eight or nine times. He does not allege any immorality of the wife. He complained that her parents prevented her from returning to him but that part has been disbelieved by the trial Judge.

( 7 ) TULSA's statement is that when she was living with her husband he used to beat her and did not give her clothes and proper meals, that she has been residing with her father for the last 3 years, (her statement was recorded on 6-4-60); and that pannalal never came to take her back. It cannot be gathered either from the petition or front the petitioner's statement the date on which he left her at her father's house.

( 8 ) IT is true that Tulsa does not state the extent of beating but it is beyond doubt that Pannalal used to beat her sometimes. Tituria (P. W. 2) also says that Pannalal beat his wife sometimes. Admittedly, Tulsa has withdrawn from the society of her husband. The question is whether she has withdrawn without, reasonable excuse.

( 9 ) SHRI Dwivedi, learned counsel for the appellant strenuously argues that beating by the husband is by itself reasonable cause for her to withdraw from her husband's society and although such conduct falls short of cruelty within the meaning of Section 10 (1) (b) of the Act, yet, it can justify her in not returning to her husband's house.

( 10 ) IT is always the choice of a person when to go to bed and when to rise; which clothes to put on and which not. In these matters the other spouse has to be tolerant. Idiosyncracacies of this nature may sometimes be irritating to the other spouse but they are part of the lottery in which every spouse engages on marrying and taking the partner of the marriage "for better, for worse. " See Edwards v. Edwards, (1949) 2 All ER 145. A3 a devoted wife it was no doubt Tulsa's duty to get up before her husband was to leave for his work, but if she did not, the husband was not entitled to beat her. Likewise, as the dutiful wife, she should have respected the wishes of her husband as to the particular clothes to be pu