1. The suit out of which this appeal has arisen was brought by the plaintiff-appellant in the Court of the Munsif of Jaunpur for restitution of conjugal rights. The claim was brought against four persons, i.e., Musammat Subhagi, Ajudhia, Jageshar and Basawan. It was alleged in the plaint that Musammat Subhagi was the lawfully married wife of the plaintiff and that she had been taken away from his house by the other defendants, who were her near relatives, a short time before the institution of the suit under the promise of sending her back to the plaintiff in a few days. She did not return to him either of her own accord or under the advises of the other defendants inspite of his repeated requests.
2. It was further alleged in the plaint that Musammat Subhagi had gone away with ornaments worth Rs. 100.
3. The plaintiff, therefore, sued for the restitution of conjugal rights and for the recovery of the ornaments or the value thereof.
4. The chief contesting defendant in the case was Musammat Subhagi. She admitted her marriage with the plaintiff, but resisted his suit mainly on two grounds, viz., (1) that he was impotent and (2) that he frequently used personal violence to her and systematically ill-treated her in other ways.
5. The learned Munsif accepted both the pleas in defence and dismissed the suit. On appeal the learned Subordinate Judge affirmed the decree of the first Court. He, however, disagreed with the first Court as to its finding on the plea of impotency. The learned Judge was of opinion that in the absence of medical evidence he was not prepared to accept the evidence of Musammat Subhagi on the point. But he agreed with the first Court as to the proof of personal violence and ill-treatment by the plaintiff. The latter has come up in second appeal to this Court. It is contended on his behalf that the only cruelty which can be recognised under the Hindu Law justifying the wife to resist the husband's claim for restitution of conjugal rights is legal cruelty which would under the English Law support a suit for judicial separation, that is, such actual violence by the husband as to endanger personal safety or health of the wife.
6. In the present case no such cruelty, it is said, has been proved.
7. The learned Counsel for the appellant does not dispute the finding of the lower Appellate Court as to the character of the violence and ill-treatment by the appellant of his wife, Musammat Subhagi. It is conceded that the finding on that point is a finding of fact and must be accepted, but his contention is that the violence and the ill-treatment found to have been used by the appellant to his wife do not in law amount to cruelty. On the other hand the learned Counsel for the respondents maintains that the said violence and ill-treatment do amount to legal cruelty. Moreover, it is urged for the respondent, Musammat Subhagi, that the finding of the lower Appellate Court on the question of impotency is not a correct one. The absence of medical evidence on the point was no reason for rejecting other evidence in the case. If the learned Judge of the lower Appellate Court was of opinion that medical evidence in the case was indispensable he should have given an opportunity to the respondent to produce such evidence. It is suggested for the respondent that the case should be remanded to the lower Appellate Court for the reception of the medical evidence and the decision of the question of impotency in the light of that and other evidence on the record.
8. I would have acceded to the suggestion of the respondent if I were of opinion that the finding of the lower Appellate Court on the other point raised in the case could not be upheld. It has been found by the learned Subordinate Judge that the appellant starves his wife, does not give her proper clothing, shuts her up every time he goes out of the house and frequently uses personal violence to her and he has turned her out more than once from his house. These facts, in my opinion, constitute legal cruelty inasmuch as they are of such a character as to endanger the personal health, if not the safety, of Musammat Subhagi. One of the circumstances which justifies discretion by a wife under the Hindu Law is cruelty in a degree which renders it unsafe, for the wife to return to her husband, vide Trevelyan's Hindu Law, page 64.
9. The plea of the respondent based on the allegation of cruelty, therefore, prevails.
10. The appeal fails and is dismissed with costs.