Inder Dev Dua, J.
(1) Shrimati Ajaib Kaur appellant instituted a suit in forma pauperis against her husband S. Balbir Singh and her father-in-law S. Uttam Singh for the recovery of Rs. 5,400/-on account of maintenance for 6 years from 20-4-1946 to 19-4-1952 at the rate of Rs. 75/-per month, for fixation of future maintenance from the date of the suit at the rate of Rs. 75/-per month and for the return of the articles i.e. stridhan worth Rs. 4,600/-mentioned in a list attached to the plaint or in the alternative for the recovery of Rs. 4,600/-on account of the value of the said stridhan. The grounds on which the claim was made is her mal-treatment at the hands of the defendants. It is alleged that a few days after the marriage both the defendants, out of greed, began to pastier the plaintiff with the intention of compelling her to bring more money from her parents and suggested to her that unless she complied with their demand they were not willing to keep her in their house. It is further pleaded that when the defendants left her at her parents' house they said that if she came back she would be done to death. For these reasons, the plaintiff alleges, that it was not safe for her to live in her husband's house and that she is entitled to separate maintenance and residence.
(2) With respect of stridhan it is averred in the plaint that at the time of the marriage the plaintiff's father had given by way of stridhan clothes, ornaments, utensils, wooden case etc., mentioned in the list attached to the plaint valued at about Rs. 4,000/-and a sum of Rs. 600/-in cash which were left in trust with the defendants and which they have refused to deliver to the plaintiff. In spite of the best efforts she has not been able to persuade the defendants to keep her in the house and that now she had not other alternative except to file the present suit to enforce her right Maintenance has benn claimed at the rate of Rs. 75/-per month. This suit was instituted in April 1952.
(3) The defendants contested the plaintiff's claim and alleged that at the time of marriage the plaintiff stayed with the defendants only for 10 days and then she took away with her even all the ornaments and clothes which had been given to her by the defendants as marriage gifts. It is denied that the appellant's father gave her any ornaments at the time of the marriage or thereafter. The marriage admittedly took place sometime in December 1944. It is also pleaded that in the middle of 1945 she came and lived in the house of the defendants for 2 or 3 months when her father took her away with all the ornaments and clothes on the pretext that there was teej teuhar and that the girls wear ornaments and clothes on this occasion.
Thereafter, it is pleaded by the defendants, the plaintiff did not come back to the defendants' house although repeated efforts were made to bring her from her parents' house. It is also alleged that the defendants took a Panchayat but the plaintiff refused to return on the pretext that she was much older than defendant No. 2 and that she was also not keeping good health. Right to maintenance was denied on the ground that she was staying away from her husband of her own accord. The pleadings of the parties gave rise to the following issues:
1. Whether the defendants have been treating the plaintiff with cruelty as alleged in the plaint?
2. Whether the defendants are in possession of and have unlawfully detained the plaintiff's stridhan and of what value?
3. Whether the plaintiff is entitled to any maintenance and at what rate and for what period? Both sides led evidence which, in my view, is inconclusive and does not disclose the real cause for the differences between the plaintiff and defendant No. 2.
(4) The trial Court dismissed the suit holding that there was no reliable proof of any cruelty or ill-treatment of the plaintiff at the hands of the defendants. The attitude of the two parties to the marriage, according tot he learned Subordinate Judge, suggested that the plaintiff was living separate from he husband of her own accord, without any justification. The Court also considered the plaintiff's evidence with respect to the retention of her stridhan by the defendants, inconclusive. The Court below has, however, also given a finding that in the event of the plaintiff being held entitled to maintenance, a sum of Rs. 40/-per month would appear to be reasonable as defendant No. 2 was employed as Research Assistant in the Irrigation Department getting about Rs. 200/-or Rs. 250/-per month; and with respect o the arrears it held that the plaintiff may in that case be allowed a sum of Rs. 500/-on account of past maintenance.
(5) Feeling aggrieved by this judgment and decree the plaintiff has come up to this Court on appeal and her counsel, Mr. Daljit Singh, has taken us through the evidence led by the parties. After going through the record, I am afraid, it is not possible for us to reverse the conclusions of the Court below. The evidence led by both the parties is inconclusive but the plaintiff can only succeed if she could prove that she was not being permitted to live in her husband's house. A wife cannot, generally speaking, be held entitled to separate residence or maintenance unless she establishes by reliable evidence that by reason of her husband's misconduct or by reason of his refusal to maintain her in his own house or for some other justifying cause she is compelled to live separately.
It is indeed her duty under Hindu Law to remain under her husband's roof and protection. It is of course true that a wife, living separately from her husband even for any improper purpose, can, at any time, return to her husband and claim to be maintained by him and this right is not permanently forfeited; it is only suspended so long as she commits a breach of duty by living separately from him: See Principles of Hindu Law by Mulla, 12th edition, para 555. It was thus always open to the plaintiff to go back to her husband and offer to live with him and if he refused to take her back this refusal would certainly entitle her to demand maintenance.
The husband has undoubtedly stated as D. W. 7 that during the plaintiff's second visit to the defendants' house, he visited the village only once for four days as he was in service but the matter does not seem to have been pursued and he was not asked as to why he did not take the plaintiff to live with him in his own house at the place where he was posted. The plaintiff has also stated in her statement as a witness that she was not willing to go and stay in the defendants' house because she suspected danger to her life. It appears to me that the material on the record has not brought out the real cause of conflict between the two parties, without knowing which it is not possible to get at the truth.
On the material on the present record, however, the Court below has, as already noticed, not been impressed by the evidence about cruelty and ill-treatment led on behalf of the plaintiff-appellant, and the conduct of the parties, in the Court's opinion, suggests that she has been living separately from her husband of her own accord without any justifying cause. The evidence regarding the retention of stridhan has also not been considered to be strong enough to justify a decree in her favour. On appeal this Court has to see whether the evidence taken as a whole can reasonably justify the conclusion at which the trial Court has arrived or whether there is an element of improbability arising from proved circumstances which, in our opinion, out-weighs such finding: See Sarju Pershad v. Jwaleshwari, AIR 1951 SC 120. In my opinion there I no such element of improbability and the finding of the Court below has to be affirmed.
(6) As a last resort Mr. Daljit Singh submitted that defendant No. 2 has in fact remarried and that in view of the provisions of S. 18 of the Hindu Adoptions and Maintenance Act No. LXXVIII of 1956 we should remand the case to the Court below for retrial after framing additional issues. According to the counsel defendant No. 2 remarried sometime in 1955. It is obvious that the question of remarriage in 1955 could not possible be the subject-matter of plea, issue or trial in the present suit, in which the judgment was given by the trial Court in June 1953. It however, does not seem to be open to the appellant legitimately to ask for remand, which would really amount to re-opening the whole case after amendment of the pleadings. If the plaintiff-appellant has any case under the recent Adoptions and Maintenance Act of 1956 (on which question we express no opinion), she may, if permitted by law, institute a fresh suit and claim whatever relief is open to her. It is certainly neither desirable nor proper for this Court at this stage to permit her to amend her pleadings and have the new plea and new issue tried in this Court.
(7) For the reasons given above, this appeal fails and is dismissed but in the peculiar circumstances the parties are left to bear their own costs in this Court.
Bishan Narain, J.
(9) Appeal dismissed.