KHAGESWAR KARNA Vs. ADUTI KARNANI

JUDGEMENT

(1.) THE husband-plaintiff is the appellant herein from a decision of the District judge of Balangir-Kalahandi by which he dismissed the plaintiff's application against his wife under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. There are is many as 6 defendants in the suit, namely, defendant no. 1, the wife of the plaintiff, defendant No. 2, the adoptive father of defendant no. 1; defdts-3 and 5, the natural parents of defendant No. 1; defdt. No. 4, the brother of defendant No. 3; defendant No. 6, the wife of Ganda Patra, defdt. No. 3. The husband's suit was contested by the wife on, among other grounds, alleged impotency of the plff-husband.

(2.) THE facts briefly stated are these: The marriage took place in 1944; it is said that it was a child marriage in that plaintiff-husband was only 9 years while the wife, defendant No. 1 was only 3/4 years at the time of marriage. In 1956 there was nuptial ceremony (second marriage), four years before the suit was filed. In the month of September 1958, the wife went to her father's house. On August 22, 1959 the husband sent registered notice Ext. 1 to his wife and her father, defendant No. 2 requesting him (father-in-law) to send back his (plaintiff's) wife and requesting his wife to come back within seven days from the dale of receipt of the letter. The wife-defendant-1 in her reply (Ext. 2) dated September 24, 1959 made allegations of inhuman treatment on her by the plaintiff-husband as stated therein. In the said reply, there is no allegation of impotency of the husband. Thereafter the husband sent another notice (Ext. 2) to the wife on October 2, 1959 in which he still offered that he would himself go and bring her (wife) back to his house. Yet, the wife did not return to the husband.

(3.) THEREUPON, on April 21, 1960, the plaintiff husband filed the suit for a direction on the wife defdt. No. 1 to return to the plff. husband's house and allow him free exercise of his conjugal rights; further that defendant-2 (wife's father) may be directed to send back defendant No. 1 to the plaintiff husband and not to detain her in his house; that defendants 3 to 6 may be restrained from detaining defendant No. 1 in their house, so that she will not be prevented from returning to the plaintiff's house; and for other incidental reliefs including costs. The suit was contested by the wife, defendant No. 1. The defence of the wife was pruelty, desertion and impotenoy of the husband,