P.N. Mookerjee, J.
1. This is the wife's appeal against a decree for restitution of conjugal rights. The material facts lie within a short compass and they may fee stated as follows:
2. The parties were married in or aboutAugust, 1955. According to both parties, they lived together for some time,--admittedly, up toFebruary, 1956,--in the husband's place at Bally.Thereafter, also, as the evidence stands, the partieslived together and co-habited uptill July, 1959,during which period a child was born to themsometime in 1958.
3. It is the husband's case that, since July, 1959, he had made various attempts to bring back the wife to him from her father's place, but those attempts, by himself and through his friends and relations, were unsuccessful. In the end, he was compelled to institute the present suit on 21st November, 1960.
4. The wife's defence was a denial of the husband's material allegations and also a specificdefence of cruelty, leading to an apprehension of her life, in case she was compelled to go back to the husband. The husband examined himself as his only witness and the wife also on her side deposed alone. There were also exhibited, on the side of the wife, some of the husband's letters, to prove that the husband did not treat her kindly, but was guilty of cruelty on several occasions.
5. The learned trial Judge,--principally, upon the view that the wife's defences, particularly, about torture and cruelty had not been established,--granted the plaintiff husband a decree for restitution of conjugal rights. Against this decree, the wife has preferred this appeal.
6. It seems to us that the learned trial Judge made a totally wrong approach to the problem before him. The matter had primarily to be decided under Section 9 of the Hindu Marriage Act. That section contains two Sub-sections--(1) and (2). Subsection (1) contains particulars of the duties or obligations, which have to be discharged by the husband to enable the Court to take a view in his favour. Sub-section (2) deals with the wife's defences to the husband's action, if it was otherwise entitled to succeed under Sub-section (1). The learned trial Judge appears to have concentrated his attention on Sub-section (2) and dealt with the case by throwing the entire onus upon the wife respondent, He is, no doubt, fully justified, upon the evidence before the court, to reject the wife's defence,--which was really in the nature of an additional or alternative defence,--of torture or cruelty as an answer to the husband's action. The evidence in this behalf is that of the wife, uncorroborated by any other evidence, and the learned trial Judge may have also been justified in reading the husband's letters, Exts. A and A(1), as not having the effect of proving this part of the wife's case. Even then, however, he seems to have fallen into an error in not paying attention to the requirements of Sub-section (1) of Section 9, which would be essential to entitle the husband to a decree in the present suit. The husband respondent has pledged his own oath, no doubt, for proving that he made attempts to bring back his wife, but those attempts were unsuccessful either because of the wife's father's or because of the wife's own attitude. He himself said that these attempts were made by himself and also through two other persons, Malay and Sing. Neither of these two persons was, however, examined by the plaintiff husband and no explanation appears on the record for their non-examination. In these circumstances, it is difficult to accept the husband's uncorroborated testimony on the above points, and, if that evidence be not accepted or accepted as sufficient to prove that the husband made attempts to bring back the wife, his case that the wife was staying away without reasonable cause, which it is incumbent upon him to prove under Sub-section (1) of Section 9, would fail. True, the wife made allegations of cruelty and torture against the husband but that, as we have pointed out above, was only by way of an additional or alternative defence, and would not, necessarily, do, in the instant case, affect the above position. This aspect appears to have been wholly overlooked by the learned trial Judge and, in this situation, we are unable to concur with him in granting the plaintiff husband a decree in the instant suit and in upholding his decision on the point.
7. In the premises, this appeal will succeed the judgment and decree of the learned trial Judge will be set aside and the plaintiff's suit will be dismissed.
8. There will be no order as to costs either in this Court or in the court below.
D. Basu, J.
9. I agree.