A decree of restitution of conjugal rights cannot be granted if the spouse's withdrawal is justified by cruelty and lack of assurance for a peaceful conjugal life.

1. Heard Mr. R. Datta, learned counsel appearing for the appellant as well as Mr. A. Das, learned counsel appearing for the respondent.

2. This is an appeal under S.19(1) of the Family Courts Act, 1984 from the judgment dated 10.08.2015, delivered in TS(RCR)359/2013 by the Judge, Family Court, Agartala, West Tripura.

3. The appellant herein instituted the suit under S.9 of the Hindu Marriage Act, 1955 for a decree of restitution of conjugal rights as the respondent was staying away from the appellant and she was denying the conjugal rights to the appellant. There is no dispute that on 13.03.2003 the parties got married as per Hindu rites and customs. After their marriage, they led their conjugal life and in the wedlock two daughters namely Debashrita and Sreyashi were born. According to the respondent after one month of solemnisation of their marriage, the appellant met a road traffic accident and became disabled. The respondent got a job, according to the appellant, showing his disability to the Government, as a Post Graduate Teacher in the year 2010 and it is the allegation of the appellant that immediately after she got the job, she left the matrimonial home to live in a rented house. She has been living in the rented house since April 2012 and refused to come back despite a series of requests made by the appellant. According to the appellant, there is no precise reason even to leave the matrimonial home. But the respondent herein, by fling a written statement denied all the allegations made against her and she has contended that she was subjected to both mental and physical torture by the appellant and further, she was blamed as an "unlucky person". Thus, she was forced to leave the matrimonial home. But the appellant never assured of a peaceful conjugal life.

4. The Judge, Family Court framed the following issues for purpose of determining the lis:
(I) Whether the wife - respondent has withdrawn herself from the society of the husband - petitioner without any lawful reasons?
(II) Is the petitioner entitled to a decree of restitution of conjugal rights as prayed for?

5. In addition, the two other witnesses were adduced by the appellant. They are Sri Santosh Bhowmik (PW - 2) and Sri Nandan Debnath (PW - 3). But no additional witness had been adduced by the respondent. She has however got herself examined in the proceeding.

6. Having appreciated the evidence what is surfaced is that the respondent was living separately from 02.04.2012. The two independent witnesses did not state anything in respect of the reason of the respondent's leaving of the matrimonial home. Only the appellant has stated that after getting the job, the respondent had left the matrimonial home. In order to counter those allegations, the respondent (DW - 1) has stated in the trial that the appellant used to abuse her in filthy language and finally, due to such unbearable torture, she had to leave her matrimonial home. The appellant or his guardian never made any attempt to take the respondent back to her matrimonial home and allow her to lead a conjugal life with the appellant.

7. Having appreciated the evidence quite meticulously, the Judge, Family Court denied to give the decree of restitution of conjugal life in terms of the impugned judgment. The said judgment has been challenged in this appeal. Mr. R. Data, learned counsel has submitted that at the instance of this Court, the appellant and the respondent with their children were asked to stay in a rented home but the respondent left the said arrangement.

8. Mr. A. Das, learned counsel appearing for the respondent has submitted that the appellant was not minimally