( 1 ) THIS is an appeal by Shyamlal, against the judgment and decree dated 22-101964, passed by the learned 2nd Additional District Judge, Bhopal, in civil suit No. 2-A of 1964, whereby the petition of the appellant under Section 9 of the Hindu marriage Act for restitution of conjugal rights was dismissed with costs.

( 2 ) IT is not disputed that the appellant was married to Saraswatibai respondent at sehore in the year 1947, and both of them lived together as husband and wife till november 1960. The respondent has 2 daughters and 1 son from the appellant and at present they are living with the respondent.

( 3 ) THE appellant filed an application under Section 9 of the Hindu Marriage Act alleging that the respondent left his house in November1960 on the excuse that her mother was ill at Sehore, and when she did not return for about a fortnight, he went there and requested her to come back with him, but she refused to live with him as his wife. The appellant served her with two notices dated 29-5-1961 and 29-6-1961 and was ready to give her proper treatment but to no avail and she refused to come back to him. Hence the petition.

( 4 ) THE respondent resisted the petition on the ground that the appellant did not give her proper treatment during her illness and she was sent to her mother at sehore. Her children were also ill at the same time, and they too were also not properly medically treated. She also said that the petitioner used to beat her cruelly with the result that she became ill. According to her, the petitioner is keeping a mistress, and be in the presence of that mistress, forced the respondent to have sexual intercourse with him. It is further said that the petitioner's treatment with her is so cruel that she has a reasonable apprehension in her mind that it would be injurious for her to live with the petitioner.

( 5 ) THE learned Additional District Judge framed 4 issues on the pleadings of the parties, and came to the conclusion that the respondent is keeping herself away from the society of the petitioner with a reasonable cause as the petitioner did not provide her with proper medical treatment during her illness, and even though the evidence on record is not sufficient to warrant an inference of legal 'cruelty' against the respondent, the learned Judge thought that it was a fit case wherein discretion under Section 9 (1) of the Hindu Marriage Act should not be exercised in favour of the appellant. As regards having a mistress by the appellant, the learned judge concluded that this allegation is not proved, and he, ultimately, on decision of issues Nos. 1 and 2, dismissed the petition of the appellant.

( 6 ) SHRI C. K. Sharma, the learned counsel for the appellant, has raised before us only one contention that the respondent has not shown a reasonable excuse or just cause to stay away and not to live with the appellant as his wife, and the learned Judge went wrong in coming to the conclusion that the appellant neglected his wife and did not give her proper medical treatment when she was ill, with the result that she was made to go away to her mother. He has also urged that the appellant in his notice. Ex. P-3, got specifically mentioned that he was prepared to get the respondent treated in Hamidia Hospital and give her all the facilities, but in spite of this, she did not come hack to live with him.

( 7 ) SHRI Khirwadkar the learned counsel for the respondent, on the other hand, urged that looking to the findings of the learned Judge, he has rightly dismissed the petition of the appellant.

( 8 ) THE only question that arises in this appeal for decision is, whether the respondent had a reasonable excuse or just cause to stay away from her husband and whether the learned Judge was right in dismissing the petition of the appellant.

( 9 ) WE have given our best and careful consideration to the respective contentions raised by the learned counsel on both the sides and to the material on record, and we a