SUSHILA DEI Vs. MADHUSUDAN KISAN

JUDGEMENT

(1.) THE Defendant -wife is in appeal against the affirming decree of the learned District Judge of Sambalpur in a suit for restitution of conjugal rights. The husband who came to Court claimed that Defendant No. 1 was his wife, marriage having taken place some time in 1962. They had a' daughter out of their wedlock aged about three years at the time of suit. Defendant's father represented to the Plaintiff that if he came and live in the family he would be given proper education.. He was, however, ill -treated and made to work as a wage -earner. Plaintiff, therefore, went out of his father -in -law's family and stayed at Bargarh. The Defendant refused to come and live with him. She instituted a proceeding for maintenance under the Code of Criminal Procedure whereafter the husband came with this suit on 22 -2 -1968.

(2.) MARRIAGE was not disputed in the Written statement. It was admitted that they had a daughter born out of the wedlock. The representation of the father as alleged by the Plaintiff was denied and it was pleaded that the Plaintiff volunteered to come and stay in the house and had entered into an agreement on 19 -2 -1964 (Ext. A) with the Defendant's other in terms whereof he had undertaken to stay with the father in his house. The Plaintiff started ill -treating the Defendant. He persuaded the Defendant's father to sell away the properties in the village and stay elsewhere along with the Plaintiff. Ultimately he deserted her and went away.

(3.) BEFORE the lower appellate Court, reliance was placed on Ext. A for the contention that there had been an agreement fixing the marital home and the Plaintiff was not entitled to withdraw from the undertaking given therein so as to require the Defendant to follow him elsewhere. The allegation of cruelty and ill -treatment was also reiterated. Both the grounds were negatived by the learned Appellate Judge and be came to hold that there was no force in the plea of desertion set up by the Defendant and, therefore, the decree granted by the trial Court was appropriate. This affirming decree of the learned Appellate Judge is assailed in second appeal.