M.C. Jain, J.
1. This is an appeal by the wife against the judgment and decree of the District Judge, Balotra, dated December 18, 1981, whereby the respondent's petition under Section 9 of the Hindu Marriage Act, 1955 (here in after referred to as 'the Act') for restitution of conjugal rights was allowed and a decree for restitution of conjugal rights was passed.
2. The respondent's case was that the parties were married on Pes Sudi 3, St. 2034 and lived as husband and wife for about two years and there after she left for her father's home along with her brother and there after did not return despite effort, so she has withdrawn herself from the society of her husband without any reasonable and lawful excuse.
3. The non-petitioner-appellant resisted the petition on the ground of physical and mental cruelty meted out to her by her husband and inlaws and the petition was also resisted on the ground that her husband insisted for cohabitation with his father, for which she refused, but his father had forcible sexual intercourse with her.
4. Necessary issues were framed. The evidence, which was recorded in the divorce petition, submitted by Meera, was also the evidence in this case. The learned District Judge, after hearing the parties, allowed the petition and passed the decree for restitution of conjugal rights. Dissatisfied with the same, the wife has preferree this appeal.
5. I have heard Shri J. R. Tatia, learned Counsel for the appellant and Shri M.L. Shrimali, learned Counsel for the respondent.
6. It may be stated that the finding recorded on the issue of physical and mental cruelty in the divorce petition, will constitute res judicata in this case. The divorce petition was decided a day earlier to the judgment in this case. As the evidence is common in both the cases and as the evidence has been considered, examined and assessed and evaluated in the divorce petition, it is not necessary to reappraise the same in this case. After considering the evidence it has been found in the divorce case that the assertion of physical and mental cruelty, is not proved and the wife has failed to substantiate the allegations and accusations made by her in her divorce petition. In view of that finding, it can clearly be concluded that the wife has withdrawn herself from the society of her husband without any reasonable and lawful excuse and so the husband-petitioner is entitled to a decree for restitution of conjugal rights. In the present case, the learned District Judge has independently dealt with the evidence on issue No. 2 relating to physical and mental cruelty and has not based his finding on the basis of the finding that has already been recorded on this question in the divorce petition against the wife. I agree with the finding of the learned District Judge on issue No. 2 and the reasons for the finding may be read from the judgment delivered today in S.B. Civil Misc. Appeal No. 32 of 1982-Smt. Meera v. Purshottam in the divorce case. In view of the adverse finding to the appellant on the issue of physical and mental cruelty, the appellant's stay at her father's house is not justified and so the appellant is bound to resume matrimonial and conjugal relations with her husband. In this view of the matter, the learned District Judge was right in allowing the petition for restitution of conjugal rights and in passing the decree.
7. No other point, except on the question of appreciation of evidence, has been pressed before me.
8. In the result, this appeal has no force, so it is hereby dismissed with no order as to costs.