1. This appeal arises out of a suit instituted by a husband for restitution of conjugal rights against the wife. Several defences were taken on behalf of the wife, one being to the effect that there was a talak by reason of which the plaintiff was not entitled to claim restitution of conjugal rights any further. Various allegations were made against the husband in the written statement alleging inter alia that he had got no means, and that there was cruelty on his part. Both the Courts below have refused to grant the plaintiff the decree asked for in the suit. Both the Courts below have come to the conclusion that the story as to talak was altogether unfounded. The Court of first instance towards the end of its judgment observed that the alliance between the husband and the wife was, an unhappy one unhappy from the side of both of thorn that the husband's only fault was that he was poor and foolish and that the wife was too intelligent to be under his protection. It observed further that the letters of the wife to her paramour if may be stated here that the Defendant No. 4 was the alleged paramour of the wife-showed that the wife had an intelligence far beyond the reach of her husband. That Court held that there was evidence to show that the wife had already given her affection to the said Defendant No. 4, and here I may quote the words used by the learned Munsif : 'The law cannot have a duel with nature as the latter must have its own course' and by this process of reasoning the learned Munsif came to the conclusion that the husband was not entitled to a decree.
2. The husband then preferred an appeal to the Subordinate Judge. That learned Judge affirmed all the findings of fact which had been arrived at in favour of the husband by the Court of first instance. There is no specific finding on the question of adultery in the judgment of the Subordinate Judge, but towards the conclusion of his judgment the learned, Judge States that the suit had been instituted by the plaintiff not for his own sake but at the instigation of the father of the Defendant No. 4 who wanted to extricate his son from the struggle, meaning evidently that the wife was living in adultery with the Defendant No. 4. That learned Judge, however, also refused to pass a decree in favour of the plaintiff. His reasons are that the case was one of an unhappy alliance that the plaintiff had openly charged the wife with adultery; and this was clear cruelty on the part of the plaintiff and on this ground he thought that no specific performance of the contract should be allowed. He further found that there was a great risk in the two living together as there would be constant quarrels and fighting and their lives would be in danger and one day one would find himself killed or both may be killed together. He recorded an opinion to the effect that the parties could not be expected to live in amity and that if all those troubles arose out of the negligence on the part of the husband the latter should be considered guilty of 'contributory negligence.' On those grounds the learned Subordinate Judge affirmed the decree of the Court of first instance.
3. By 'contributory negligence' the learned Judge evidently meant that the husband had not taken sufficient precaution so that the wife might not go on living in adultery. Be that as it may, these are all the grounds which have been referred to by one Court or the other in refusing the plaintiff the relief that he sought-for in the present suit. As regards cruelty the Judicial Committee in the case of Moonshee Buzloor Ruheem v. Shumsoonnissa Begum  11 M.I.A. 551 has observed thus:
The Muhammadan Law, on a question of what is legal cruelty between man and wife, would probably not differ naturally from our own, of which one of the most recent expositions is the following : 'There must be actual violence of such a character as to endanger personal health or safety ; or there must be a reasonable apprehension of it.'
4. 'The Court,' as Lord Stowell said, in Evans v. Evans  1 Hagg. Con. 35 'has never been driven off this ground.' Judging the findings of the Courts below by the test of this observation of their Lordships of the Judicial Committee it is clear to my mind that the cruelty that has been found in the present case falls far short of the mark. To speak of a wife that she has been living in adultery at a time when the has been so living, can hardly be said to be cruelty at all, and in any event it cannot be said that this conduct on the part of the husband fulfils the requirements of the conditions laid down by their Lordships in those observations.
5. It has been contended on behalf of the respondent, and rightly contended, that cruelty is not necessarily the only ground upon which a claim for specific performance of a contract of this character may be resisted and my attention has been drawn to some other observations of their Lordships in their judgment in the same case, for instance, to the passage where their Lordships say:
It may be, too, that gross failure by the husband of the performance of the obligations which the marriage contract imposes on him for the benefit of the wife, might, if properly proved, afford good; grounds for refusing to him the assistance of the Court.
6. Their Lordships, however, proceeded to observe as follows:
And, as their Lordships have already intimated there may be cases in which the Court would qualify its interference by imposing terms on the husband. But all these are questions to be carefully considered, and considered with some-reference to Muhammadan Law.
7. There is in the present case hardly anything which may be said to justify an inference that in point of fact the plaintiff was unable to perform or that there was gross failure on his part to perform those obligations which the marriage imposed on him for the benefit of his wife. None of the findings to which I have referred, nor any of the reasons which have been given by the Courts below, would fulfil the requirements laid down by their Lordships of the Judicial Committee to which I have referred. I am accordingly of opinion that there was no justification whatsoever for the Courts below to have refused the plaintiff the relief that he sought for in the present case.
8. An unreported case of this Court has been brought to our notice in which it was laid down in a case in which the husband was living in the house of his second wife and wanted to take his first wife, the defendant in the suit, to that house, and there was a finding to the effect that he was unable to maintain his first wife, that the plaintiff in that case was not entitled to restitution of conjugal rights. The facts of that case are entirely different from those of the present. To refuse the plaintiff relief in a case like the present would be to put a high premium on immorality and adultery.
9. Furthermore, it has been argued that the husband has not got means enough to maintain the wife, that he has got no house of his own, and also several other matters have been brought to our notice which are to be found stated in para. 11 of the wife's written statement. These matters were alleged no doubt, but none of the Courts below have come to any-finding which would go to show that these allegations are well-founded.
10. I am accordingly of opinion that the decrees passed by the Courts below cannot be sustained; that they should be set aside; and a decree should be entered in favour of the plaintiff granting him restitution of conjugal rights which he prayed for. The plaintiff will be entitled to all costs in all the Courts. Having regard to the facts of the case the decree for costs will be as against Defendant No. 4 only.
11. I entirely agree. In my judgment the ratio decidendi, which has been adopted by the Courts below, is fundamentally erroneous, being contrary alike to the principles of Muhammadan Law, as well as to the dictates of common sense. Having regard to the facts alleged and proved and, indeed, it may also be said found, there was no real answer to the case set up by the plaintiff. No facts have been either proved, or found, which can deprive the plaintiff of his right to the custody of his wife's person. Certainly, poverty can be no ground for refusing to grant to the plaintiff the relief which he was entitled to expect from the Court. Nor can it be said that any case of cruelty was made out. Apparently the only cruelty which has been found consisted in the husband openly charging the wife with adultery with another man notwithstanding the fact that such adultery had, undoubtedly taken place, and the findings are to that effect. Apart from this there is no other finding as to other acts of cruelty.
12. In my opinion, the decisions of the Courts below amount to a denial of justice, and I agree with my learned brother that the appeal must be allowed.