JUDGMENT Hon'ble Yorke, J. - This is a second appeal by one Ram Bharose Brahman Plaintiff, whose suit for restitution or conjugal rights against his wife, Mst. Sheo Dei, was dismissed by the Munsif of Safipur at Unao, whose decision was maintained in appeal by the learned District Judge of Unao. 2. The parties to this suit were married as far back as 1915 when the Plaintiff was a member of a Hindu joint family. Separation took place in that family in 1920 after which the Plaintiff-Appellant and the Respondent lived separately from the rest of the family. It appears that troubles began between husband and wife from about the year 1929. In that year the Appellant filed a report at the police station alleging that his father Sheo Narain had kidnapped his wife and that his wife, Mst. Sheo Dei, had committed theft of his property. This report was followed up in 1930 by a complaint against the wife under Sections 323, 392 and 384 of the Indian Penal Code. In 1932 a second report of theft was made against Mst. Sheo Dei by the Plaintiff-Appellant and in 1933 it is said that a third report was made against Mst. Sheo Dei and other persons. It is alleged that on several occasions previously the Plaintiff-Appellant had beaten his wife and that on this occasion in 1933 he beat her and turned her out of his house. Early in 1935 Mst. Sheo Dei filed an application u/s 488 of the Code of Criminal Procedure and obtained on the 18th April, 1935, an order for payment of Rs. 6 monthly as maintenance. The defence which was put forward by the present Appellant in the Magistrate's Court was that Mst. Sheo Dei was immoral but this was also accompanied by an offer to take her back. That offer was regarded by the Criminal Court as not having been made bona fide but merely as a reply to the claim for maintenance. Finally, in July. 1935, the Plaintiff-Appellant instituted the present suit on the allegation that Mst. Sheo Dei had gone to her own home in 1933 and had since then refused to return. Hence he claimed restitution of conjugal rights. 3. The defence put forward by Mst. Sheo Dei was that she had bean treated cruelly and had been falsely accused of theft and immorality. 4. Sheo Dei had gone to her own home in 1933 and had since then refused to return. Hence he claimed restitution of conjugal rights. 3. The defence put forward by Mst. Sheo Dei was that she had bean treated cruelly and had been falsely accused of theft and immorality. 4. The learned Munsif framed a single issue-- Is the Plaintiff not entitled to a decree for restitution of conjugal rights for reasons alleged in Para. 8 of the Defendants written statement? 5. In a careful judgment he came to the conclusion first of all that the only reliable witness of the Defendants was counter-balanced by that of the equally reliable witness of the other. He then went on to consider the evidence of the Defendant herself and the Plaintiff and he concluded by saying: Now if we read the statements of the Defendant No. 1 and the Plaintiff together 1 think there is hardly left any room for doubt about the alleged cruel treatment of the Plaintiff towards his wife, the Defendant No. 1. 6. This is clearly a finding of fact that the Plaintiff-Appellant was guilty of cruel treatment towards his wife in this way that as mentioned by the Respondent he had beaten the Defendant on two or three occasions. The learned Munsif went on in the very next sentence of his judgment to say: Even if the story of the Plaintiff beating Defendant No. 1 as narrated by the latter be supposed for a moment to be untrue I think it has been abundantly proved that the Plaintiff has been guilty of legal cruelty towards Defendant No. 1. 7. The wording of this sentence itself clearly indicates that the Munsif was himself convinced of the truth of the charges of physical ill-treatment and he was only proceeding on the argumentative hypothesis that this was to be regarded as unproved. He then proceeded to come to the conclusion that the Plaintiff-Appellant by accusing his wife of theft and adultery and immoral living was guilty of legal cruelty. Finally, he remarked that the suit had clearly been filed simply with a view to get rid of the maintenance decree and was, therefore, not a bona fide suit at all and he dismissed it accordingly. 8. Finally, he remarked that the suit had clearly been filed simply with a view to get rid of the maintenance decree and was, therefore, not a bona fide suit at all and he dismissed it accordingly. 8. When the case came in appeal before the learned District Judge of Unao, he seems to have thought that the trial Court had not relied on the oral evidence for the Defendant in regard to physical cruelty and he proceeded to examine the evidence and held that the Defendants had proved physical cruelty on the part of the Plaintiff. This is a finding of fact which cannot be assailed in second appeal as such. He also went on to hold that the Plaintiff had been guilty of legal cruelty and that in these circumstances the Plaintiff-Appellant was disentitled from obtaining the relief of restitution of conjugal rights. 9. Learned Counsel has argued in the first place that the case reported in AIR 1927 154 (Oudh) relied upon by the lower Courts is not applicable to the present case because the parties to that suit were Mahomedans. I would not be prepared to accept that contention entirely. What was said in AIR 1927 154 (Oudh) was doubtless in connection with a case between Mahomedans but the manner in which the principles were applied is stated at the top of page 250 where the learned Judges remarked It seams to us that the principles of justice, equity and good conscience not inconsistent with any positive rule of Mahomedan Law may wall be applied in determining the ground on which a claim for restitution of conjugal rights may be refused by the Courts of justice. 10. The learned Judges went on to refer to Sub-section (g) of Section 3 of the Oudh Laws Act and to say: As observed by their Lordships of the Judicial Committee in the case Quoted above Moonshee Buzloor Ruheem v. Shumsoonnissa Begum (1867) 11 M.I.A. 551, an Indian Court might well admit defences founded on the violation of marital rights. 11. They went on to quote an observation of Lord Herschell, D.C. in the case of Mackenzie v. Mackenzie (1895) L.R.A.C. 384 where he said: It is certain that a spouse may, without having committed an offence which would justify a decree of separation, have so acted as to deserve the reprobation of all right-minded members of the community. 11. They went on to quote an observation of Lord Herschell, D.C. in the case of Mackenzie v. Mackenzie (1895) L.R.A.C. 384 where he said: It is certain that a spouse may, without having committed an offence which would justify a decree of separation, have so acted as to deserve the reprobation of all right-minded members of the community. Take the case of a husband who has heaped insults upon his wife but has just stopped short of that which the law regards as saevitia or cruelty; can he when his own misconduct has led his wife to separate herself from him, come into Court, and avowing his misdeeds, insist that it is bound to grant him a decree of adherence?.... Might not the Court refuse its aid to one who had so acted, and regard his conduct as a bar to his claim to relief?.... It is not a notion strange to our law that the Court should refuse its aid to one who does not come into it with clean hands. 12. It seems to me that the principles stated in this case are of general application and not limited to cases of restitution of conjugal rights where the parties are Mahomedans. 13. Learned Counsel went on to argue that although doubtless there was a finding of physical cruelty, which is a finding of fact, that finding required to be reconsidered in its legal aspects* that is to say that it as stated above is a finding of fact only in regard to the actual acts of cruelty. He contended that a Hindu husband has a right to inflict corporal punishment on a wife with a light instrument and that the finding in the present case was that during 20 years of married life the wife had only been beaten on three occasions, on two of which she was beaten with fists and kicks only, and it was contended that the Plaintiff was justified in inflicting this corporal punishment because the wife was declining to leave the Appellant's village Makhi and go to live with him at the various places where as a district board school master he was posted. It was contended that a Hindu husband is entitled to demand obedience and that three beatings for disobedience could not be regarded ^s amounting to habitual cruelty so that a restitution of conjugal rights would involve a danger to safety of the wife. In this connection learned Counsel referred to Dwarka Nath Matter's book, "The Position of Women in Hindu Law", page 309 following where he has remarked that such defences are open to her as are possible under the principles of natural justice, read in the light of the Hindu law of marriage and be has actually referred to the case of Buzloor Ruheem v. Shumsoonnissa Bagum (1867) 11 M.I.A. 551, to which I have just referred above. In subsequent pages the writer has referred to several cases which have been quoted before me, in which it has been held that there may be cases where conduct, though short of legal cruelty, on the part of the husband may bar a suit for restitution. Further on, he mentions several defences, which would not be considered adequate to such a suit as for instance, the marrying of a second wife, the mere making of an assault on a wife, or unkindness or neglect short of cruelty. At page 317 he remarks: "Unfounded imputations upon the wife's chastity would also be no good defence to a suit for restitution", this remark being based o.a the Bombay ruling reported in Yamunabai and Narayan Jagannath Bhide v. Narayan Moreshvar Pendse (1876) 1 Bom. 164, in which the learned Judges remarked: But we do not think that we should be justified under Hindu Law, any more than under English law, in holding that an unfounded imputation upon a wifes chastity, however gross an outrage, is by itself sufficient to constitute legal cruelty. (Vide p. 173). The important words here however are the two words "by itself". 14. Learned Counsel has further based his arguments on "The Hindu Law of Marriage and Streedhana" by Banerji (The Tagore Law Lectures for 1878), where the relations of husband and wife are discussed in lecture IV on the legal consequences of marriage. (Vide p. 173). The important words here however are the two words "by itself". 14. Learned Counsel has further based his arguments on "The Hindu Law of Marriage and Streedhana" by Banerji (The Tagore Law Lectures for 1878), where the relations of husband and wife are discussed in lecture IV on the legal consequences of marriage. At page 128 the writer mentions the rule of Manu that a wife may be corrected when she commits faults with a rope or a small shoot of cane, but the writer goes on to say that the weight of Manu's authority is almost balanced by a text of high authority, which say: Strike not even with a blossom a wife guilty of a hundred faults, and he proceeds to point oat that the Indian Penal Code makes no exception in favour of the husband's right to chastise the wife. 15. In my opinion the fact that the Appellant chastised the wife only three times in 20 years cannot be defended on the basis of Hindu Law in regard to the rights of husbands to punish their wives. 16. Learned Counsel for the Appellant based his arguments on a number of rulings, beginning with the case reported in Yamunabai v. Narayan (1876) 1 Bom. 164 just mentioned. He also referred to the cases reported in Jogendranundini Dossee v. Hurry Doss Ghose (1879) 5 Cal. 500, Matangini Das v. Jogendra Chandra Mulick (1891) 19 Cal. 84 and Dular Koer v. Dwarka Nath Misser (1905) 34 Cal. 971. 17. It does not appear to me that any of these cases is really particularly helpful in the present case. In the last of these cases it was held that the husband would not be entitled to succeed even if his conduct did not amount to cruelty but constituted a grave matrimonial offence. That was also a case where there was a considerable doubt whether the action was instituted bona fide in order to obtain the return of the wife for co-habitation. 18. Another case relied on was Bifida v. Kaunsilia (1890) 13 All. 126, but again, I doubt if this case is really helpful to his argument. At page 163, for example, Mr. 18. Another case relied on was Bifida v. Kaunsilia (1890) 13 All. 126, but again, I doubt if this case is really helpful to his argument. At page 163, for example, Mr. Justice Mahmood remarked: The general principles of humanity upon which our Courts act in such matters have, however, lad to a long course of decisions which recognise the rub that legal cruelty of the husband would be a sufficient cause for refusing restitution of conjugal rights, or otherwise affect the claim, and commenting upon Yamunabai v. Narayan Moreshvar Pandese 1876 1 Bom. 164 he remarked that in that case the Bombay High Court laid down that the Hindu Law on the question what constitutes legal cruelty sufficient to bar a claim for restitution of conjugal rights would not differ materially from the English law; that to constitute legal cruelty there must be actual violence of such a character as to endanger personal health or safety, or there must be reasonable apprehension of it, and that mare pain to mental feelings, such for instance as would result from an unfounded charge of infidelity, however wantonly caused or keenly felt, would not coma within the definition of legal cruelty. 19. With great respect, I doubt whether this is exactly what was laid down in the Bombay case and I think that the words "by itself" have perhaps been lost sight of. At the close of his judgment Mr. Justice Mahmood said: I do not think that past cruelty any more than past adultery of the husband would constitute a sufficient defence under the Hindu Law to such a suit, and I hold that in cases between Hindus, whilst past cruelty would furnish good reason for apprehending cruelty in the future, a Court would not be justified in dismissing a suit for conjugal rights where the circumstances would warrant the conclusion that no cruelty in the legal sense is to be apprehended, and the welfare and. the safety of the wife can be secured even if the suit is decreed. 20. On behalf of the Respondents reliance has been placed on a number of recent rulings, which indicate the progress of opinion such as might be expected from the seed sown in many of the above older rulings relied upon by the counsel for the Plaintiff-Appellant. 21. In the case of Bai Jivi Vs. 20. On behalf of the Respondents reliance has been placed on a number of recent rulings, which indicate the progress of opinion such as might be expected from the seed sown in many of the above older rulings relied upon by the counsel for the Plaintiff-Appellant. 21. In the case of Bai Jivi Vs. Narsing Lalbhai, AIR 1927 Bom 264 , it was held by a Bench of the Bombay High Court that in a suit for restitution of conjugal rights by a Hindu husband, the husband is not necessarily entitled to a decree in the absence of a plea of cruelty by the wife, and that where the wife has pleaded desertion and want of bona fides she should be allowed to lead evidence so that the Court may be in a position to judge whether the relief sought for by the husband should be granted or not, and if so on what condition as if any. It was pointed out in more than one place that although the Hindu Law jays down the duty of the wife of implicit obedience and return to her husband, it has laid down no such sanctions or procedure as compulsion by the Courts to force her to return against her will and that the remedy and procedure had been adopted by the British Indian Courts from the English Ecclesiastical Courts by various analogies such as to consider them as a species of suit for specific performance. Mr. Justice Madgavkar in his judgment in this case pointed out that the. Courts have not assented to the proposition that actual physical cruelty is necessary to enable the wife to resist such a suit and he remarked in the absence of legislation it appears, therefore, on the whole that the Courts desire to consider the entire conduct of the parties so as to be able to judge whether the Plaintiff deserves at the hands of the Court the relief which he seeks, and whether such a relief is not unreasonable in the particular case against the Defendant. 22. In Ude Singh v. Mst. Daulat Kuar (1935) 16 Lah. 22. In Ude Singh v. Mst. Daulat Kuar (1935) 16 Lah. 892, it was held that under Hindu Law, a suit by the husband for restitution of conjugal rights can be defeated on the ground of the desertion of the wife for a long period and continued disregard of his marital obligations towards her; it is not necessary to prove actual physical cruelty. A Court should, in each case, consider the entire conduct of the parties and if it comes to the conclusion that the husband has been guilty of continued neglect of the wife and has deserted her and the suit has not been instituted bona fide, the suit should be dismissed. Reliance was placed in this case on a number of cases to which I have referred earlier. 23. Similarly in a recent case of the Madras High Court reported in Rukmani Ammal and Others Vs. T.R.S. Chari, AIR 1935 Mad 616 , it was stated as follows: The Hindu Law is silent as regards the right of the husband to obtain the help of the Court in securing the company of his wife; though the Hindu Law prescribes the duty of obedience and also contains provisions regarding the right of the wife to claim maintenance, a suit for restitution of conjugal rights is really not contemplated by the Hindu Law proper, and such suits have been allowed on the analogy of similar suits in England which were dealt with originally under the Ecclesiastical jurisdiction. There is no stringent rule that in every case, unless actual cruelty is established, a husband is entitled to a decree for restitution of conjugal rights. Whether he is so entitled or not must be decided after a consideration of all the circumstances of the casa; in other words, what is sought in such a suit is an equitable relief, and equitable considerations cannot be ignored even when they are in favour of a Hindu wife. 24. These decisions seem to me to indicate the line of development, which has taken place in the views of the High Courts on this subject. 25. In the light of these rulings it is necessary to consider the history of the marital relations between the parties as found by the Courts below. They indicate the growth of unsatisfactory relations between the husband and wife from 1929 onwards. 25. In the light of these rulings it is necessary to consider the history of the marital relations between the parties as found by the Courts below. They indicate the growth of unsatisfactory relations between the husband and wife from 1929 onwards. He has been guilty of physical violence on at least three occasions and it is clear that marital relations were broken off more than two years prior to the date of the suit. Mst. Sheo Dei alleged that she was turned out of the house and in the light of the various reports made by the Plaintiff against his wife this seems to be highly probable. In my opinion the conduct of the Plaintiff in making charges of theft and immorality against his wife certainly constitutes a matrimonial offence of a very objectionable kind such as can be raised as a defence to a suit for conjugal rights particularly when there are also acts of physical violence. It also throws grave doubt on the bona fides of the Plaintiff in instituting the present suit. The Plaintiff stated in his evidence that he was anxious to live with his wife despite her immorality and despite the injury to the family honour caused thereby. In this connection I may refer to two rulings quoted by learned Counsel for the Respondents. The first of these is reported in Babu Ram v. Musatnmat Kokla. (1924) 46 All. 210 The head-note runs as follows: The Plaintiff, who was a Brahman, had many years ago turned his wife out of doors because he suspected her chastity. The wife went to live with her uncle, who supported her. Later on, she applied for and obtained an order for maintenance u/s 488 of the Code of Criminal Procedure against her husband. During these proceedings the husband still refused to take his wife back, stating at the time that he suspected her chastity, when, however, the wife began to execute her decree for maintenance, the husband proceeded to file a suit for restitution of conjugal rights. It was held that in the above circumstances the inference was legitimate that the Defendant would have a reasonable apprehension of bodily injury if she returned to her husband, and that the Court below was right in refusing the Plaintiff a decree. 26. Similarly in Maung Saw Pe. v. Ma Dan Sein Pyu AIR 1937 Rang. It was held that in the above circumstances the inference was legitimate that the Defendant would have a reasonable apprehension of bodily injury if she returned to her husband, and that the Court below was right in refusing the Plaintiff a decree. 26. Similarly in Maung Saw Pe. v. Ma Dan Sein Pyu AIR 1937 Rang. 506, it was held in a suit for restitution of conjugal rights that the suit was really intended to avoid payment of separate maintenance which the wife was receiving, and she had reasonable cause for refusing to go to her husband. That also was a case in which there was an order of maintenance u/s 488 of the Code of Criminal Procedure. 27. It seems to me that a similar state of affairs is to be found in the present case. The Plaintiff did not institute any suit for restitution of conjugal rights until his wife actually obtained against him an order for maintenance u/s 488 and even when that order was sought by her he repeated his accusations of immorality. A man who in defence to such an application accuses his wife of immorality disentitling her to an order for maintenance, can hardly expect to be believed when in the same breath he says that he is willing to take her back, nor can he at a later date expect that a Court will regard his suit for restitution of conjugal rights as a bona fide suit, and in the circumstances that the suit is not a bona fide one it is reasonable to hold that if a decree is given against the wife and the wife in obedience to that decree goes back to the husband there will be serious danger to her health and safety by reason of her so doing. In ray opinion in the state of the law as it now stands the two lower Courts rightly dismissed the Plaintiff's suit for restitution of conjugal rights. 28. This appeal accordingly fails and is dismissed with costs.