Barman, Ag. C.J.
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,
4. The trial court dismissed the plaintiff-husband's suit on the finding that the husband was cruel in that he ill-treated and assaulted the wife causing reasonable apprehension in the mind of the wife defdt-no. 1 that it would be harmful and injurious for her to live with the plff.; the trial court also found that the plaintiff was impotent at the time of marriage of his wife defdt-1 and still continues to be so. As regards desertion, the trial Court held that the defendants failed to prove that the wife was descried by the plaintiff for more than two years as alleged.
5. Section 9 of the Hindu Marriage Act provides that the Court may pass a decree for restitution of conjugal rights if the husband or the wife without any reasonable cause withdraws from the society of the other. The wife in the present case admits to have left her husband's house, but pleaded that her husband was impotent and incapable of performing sexual act and also accused him of cruelty. That these arc good grounds for refusing to pass a decree in favour of the appellant cannot be doubted in view of the provisions of Section 9(2) of the said Act.
6. The trial Court on evidence accepted both the pleas of the wife and dismissed the suit. On the point of impotency the evidence of the wife also gets sonic corroboration from the report of the doctor which reveals that the husband had a small penis and the erection was negligible. Mr. Patnaik, learned counsel for the appellant mainly contended that the doctor should have been examined in the Court and made available for cross-examination. It is admitted by the appellant that he was examined by the doctor in the presence of counsel for both sides. Though opportunities were given to the parties no effort was made by the appellant to summon the doctor as a witness. That being so, the request of the learned counsel to remand the case for examination of the doctor cannot be allowed.
In any event, the doctor's report though itself appears not to be much decisive, lends some support to the story of the wife that the appellant was incapable of performing sexual intercourse with her. That apart the wife also alleged that she was assaulted by the appellant when she made allegations against the sorcerer who came to cure the husband of his impotency, but attempted to outrage her modesty.
Apart from impotency, cruelty is itself a good ground for refusing restitution. On an analysis of evidence the trial court accepted the version of the wife. We see no reason to differ from him.
In the result, the order of the trial Court is upheld and the appeal dismissed.
The parties are to bear their own costs throughout.
7. I agree.