S. M. N. RAINA, J.

( 1 ) THIS is an appeal by the husband whose petition for restitution of conjugal rights has been dismissed by the District Judge, Gwalior.

( 2 ) THE petitioner aged about 30 years is a painter by profession. He was married to the respondent on 17-6-49. The parties are Hindus and the marriage was according to the usual Hindu rites. After the marriage the parties lived together in lashkar.

( 3 ) THE case of the petitioner-appellant is that on 15-12-1951 the respondent went away and did not return. He served the respondent with a notice on 7-12-1964 calling upon her to come and live with him but she refused to accept the notice. Thus, according to him the respondent has withdrawn herself, from his society without any reasonable excuse. He, therefore, claimed a decree for restitution of conjugal rights.

( 4 ) THE respondent contested the suit on a number of grounds. She alleged that the marriage was liable to be annulled as she was a minor at the time of her marriage end the consent of her father was obtained by fraud. She further alleged that it was the petitioner, who had deserted her and that he had also treated her with such cruelty as to give rise to an apprehension in her mind that it would not be safe for her to live with him. She also raised certain other pleas with which we are not here concerned and contended that the petitioner was not entitled to a decree for restitution of conjugal rights.

( 5 ) THE learned trial Judge held that it has not been proved that the marriage was vitiated by fraud, or that the respondent was treated with cruelty. He further held that it was not proved that the petitioner had deserted her. On other points he held in favour of the petitioner. But he dismissed the petition on the ground that it was inordinately delayed and there was no possibility of the parties making a happy home because wife (respondent) was not willing to live with the husband (petitioner) and efforts at conciliation had failed.

( 6 ) THE learned counsel for the respondent questioned the finding of the trial Judge on the issue relating to cruelty, We have carefully gone through the evidence on this point and we think that the finding is correct. The burden of proving ill treatment was on the respondent. Her version is that she never lived with the petitioner and even the marriage was not consummated. If so there would be no occasion for the appellant to ill treat her. As we shall point out later her contention that she never lived with the appellant does not appear to be correct. But on the basis of her own version no inference of ill treatment can be drawn.

( 7 ) THE only ill treatment about which she spoke in the witness-box is that the petitioner used to visit her and pressed her to accompany him and this gave rise to quarrels. She also asserted that he used to bring with him goondas and also used to beat her. There can be no doubt that the respondent, who does not appear to have much regard for truth was trying to exaggerate and distort facts in order to give a new colour to the ordinary incidents at which the appellant seems to have persuaded her to accompany him. It is significant that the respondent's father stated that on certain occasions the appellant had attempted to take the respondent with him by physically dragging her. Apparently, his knowledge is based on what he was informed by the respondent, because none of these incidents took place in his presence. But it is significant that he did not allege that the appellant had obtained the assistance of the goondas or assaulted his wife.

( 8 ) YASHWANTRAO (P. W. 2) who is the brother of the respondent says that he once witnessed a quarrel in which the appellant asked the respondent to accompany him and the quarrel took place because she was unwilling. Jaisingh Rao (D. W. 4)no doubt asserted that on one occasion he had seen the petitioner assaulting tarabai, but he was rightly disbelieved by the trial Judge. He appears to be an over-zealous witne

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