MT. SITA KUMHAR Vs. DEBIDIN KUMBHAR

JUDGEMENT

(1.) MACNAIR , J.C. 1. This appeal arises out of a suit filed by Debidin for restitution of conjugal rights against his married wife, Mt. Sita, and for injunction against her father and brother, the other appellants that they should not prevent Mt. Sita from going to the house of her husband. The learned Additional District Judge has held that the plaintiff continues to have immoral relations with one Mt. Dooki. He holds that Mt. Dooki does not live with the plaintiff in one and the same house: the fact of continued immoral relations does not justify the plaintiff's wife living separate from her husband. He is of opinion that a decree for restitution of conjugal rights will lead to unhappy results, but considered that a decree should be granted because no cause sufficient in the eye of the law existed to justify the wife in refusing to live with her husband. He held that the other defendants took an active part in aiding Mt. Sita to live apart from her husband and decreed the claim made by the plaintiff.

(2.) IN appeal it is first urged that the continued intimacy of the plaintiff with Mt. Dooki justified Mt. Sita's refusal to live with her husband. The Additional District Judge has relied on Binda v. Kaunsilia (1891) 13 All 126 for the proposition that infidelity on the part of the plaintiff is not by itself sufficient to disentitle the plaintiff from claiming restitution of conjugal rights. But Mahmood, J., in that case has stated that past adultery of the husband would not constitute a sufficient defence under the Hindu law to such a suit. The decision in Paigi v. Sheonarain (1886) 8 All. 78 is cited with approval. In that case an objection that the husband was actually living in adultery with another woman was termed a reasonable objection. The Judge of first appeal accepts the view that decree for restitution of conjugal rights should not be granted if the husband is keeping a mistress in his house.

(3.) IT has been found that long standing immoral relations between the plaintiff and Mt. Deoki continue and that Mt. Deoki lives in a house provided by the plaintiff adjacent to the plaintiff's dwelling house. The injury to the feelings of Mt. Sita from the continuance of such connexion would be very considerable. The Judge of first appeal himself considers that she would be rendered unhappy. In my opinion, the plaintiff is not entitled to a decree for restitution of conjugal rights unless and until he can give the Court reason to believe that his intimate connexion with Mt. Deoki will cease if his wife returns to his house. I hold then that the plaintiff's suit should be dismissed. The appeal therefore succeeds: costs in all Courts will be borne by the plaintiff.