DULAR KOER Vs. DWARKA NATH MISSER

JUDGEMENT

(1.) This is an appeal by the defendant against the judgment of the Subordinate Judge affirming on certain conditions the decree of the Munsif in a suit in which the plaintiff claimed restitution of conjugal rights.

(2.) From the paper-book it appears that the plaintiff expelled the defendant, her son and daughter-in-law from his house in 1875 and that for the 26 years anterior to the bringing of the suit the parties have been living separate. The plaintiff married a second wife, and took as a concubine a low caste prostitute to live with him. The defendant s, son had brought a suit for partition in which an appeal was (at the time this suit was heard) pending in the High Court. The Subordinate Judge thinks that the plaintiff's motive in bringing the suit after the lapse of 26 years was to coerce the defendant into withdrawing the appeal presented by her in her son's partition-suit by forcing her under the decree of the Court to return to her husband, and reside with him as wife in the marital house in company with his second wife, and his low caste mistress under conditions under which he would be able to force her to withdraw her case.

(3.) Both the Munsif and the Subordinate Judge think that neither the taking of the second wife, nor the keeping of a Ghasi prostitute in the house are sufficient to entitle the wife to resist a decree for restitution of conjugal rights: but the Subordinate Judge goes on to say that if cruelty to a degree rendering it unsafe for the wife to return to her husband's dominion were established the Court might refuse to send her back and after stating that this has not been proved, the Judge goes on to impose certain conditions for "safety of the defendant as the suit does not seem to be a bond fide one."