JUDGEMENT : CHATURVEDI, J. This is plaintiff's second appeal in a suit for maintenance filed against the respondent No. 1, Prabhulal, husband of the plaintiff; respondent No. 2, Bhagirath, plaintiff's father-in-law and respondent No. 3, Rameshwar brother of respondent No. 1, and son of respondent No. 2. The suit was decreed by the trial Court; but the first appellate Court allowed the defendant's appeal and dismissed the suit of the plaintiff. 2. In para No. 4 of the plaint the plaintiff clearly stated that she was driven out of her house by the defendants in the month of Ashad of Samvat year 2002 and since then she had been residing with her mother in Alhed. The suit was resisted on behalf of the defendants on several grounds and the main ground taken was that the plaintiff was unchaste and that she had of her own accord left the house of her husband and went to reside with her mother without any justifiable reason. 3. Several issues were framed on the 27th April, 1947. Issues Nos. 1, 2 and 5 are important ones. They are as follows : 1. Whether the defendants drove the plaintiff out and refused to maintain her? 2. Whether the defendants prove the unchastity of the plaintiff. If so how does it affect the suit? and 5. Whether the plaintiff refuses to live with the defendants without lawful justification? 4. The trial Court came to distinct findings on issues Nos. 1 and 5 that the plaintiff was driven out by her husband and her father-in-law; that after her departure from the house, defendant No. 1, took another wife and no attempt was made to send for the plaintiff from Alhed. It, therefore, came to the conclusion that the plaintiff did not refuse to live with the defendants without any lawful justification. 5. As regards issue No. 2, it may be mentioned that after the evidence was completed an applicacation was made by the defendants to the Court for permitting them to amend their written statements. This permission being accorded, Issue No. 2, was deleted under an order of the Court passed on the 29th of March 1948. This is important to note that defendant No. 1. and his father defendant No. 2, in their endeavour to gratify their hatred against the plaintiff, did not even hesitate to asperse her character. This permission being accorded, Issue No. 2, was deleted under an order of the Court passed on the 29th of March 1948. This is important to note that defendant No. 1. and his father defendant No. 2, in their endeavour to gratify their hatred against the plaintiff, did not even hesitate to asperse her character. The defendant No. 1, even in his statement before the Court used certain expressions in reference to his wife which showed that the defendants Nos. 1 and 2 all along suspected intimate relations between the plaintiff and defendant No. 3. The Courts below have not touched this point but we must formally record our opinion that there is no evidence sufficient to warrant any imputation against the plaintiff's moral character. 6. The learned District Judge did not approach the subject in any systematic way. There is no finding by him on the first issue. In fact Issue No. 1 has not been touched by him in his judgment. This judgment proceeds upon the duties of Hindu wife towards her husband; and there is no doubt, that the Hindu Law while it enjoins upon the wife the duty of attendance on, obedience to, and, veneration for, the husband, it also inculcates that the husband must honour the wife and treat her with affection and courtesy. A wife living apart from her husband for any improper purpose may at any time return and claim to be maintained. Her right is not forfeited but is suspended during the times she commits a breach of the duty by living apart from her husband. Where a wife claims separate maintenance from her husband she must show that he abandoned her, deserted her, or, expelled her from the house without any justifiable cause. As mentioned above the learned District Judge instead of deciding Issue No. 1, tried to effect a compromise between the parties, and on his failure observed that respondent No. 1, desired to take the plaintiff back in his house, but the plaintiff refused, and on the basis of a judgment reported in 'SHER SINGH v. SHAM KAUR', AIR 1928 Lah 502, held that a wife cannot be entitled to separate maintenance when the husband is willing to take her back in his house and keep her and she refuses to accept that offer without sufficient justification. The learned Judge also held that no physical violence or legal cruelty has been proved by the plaintiff in the case and and on these two grounds he allowed the appeal and dismissed the plaintiff's suit for maintenance. 7. Mr. Samvatsar, learned counsel for the appellant, places his reliance on 'K.J. VENKATAPATHI NAYANIVARU v. PUTTAMMA NAGITH', AIR 1936 Mad 609, in which it has been held and with respect we concur with the views that the grounds which would be available to a wife to defeat a suit for restitution of conjugal rights by a husband would also entitle her to live apart from her husband and claim a separate maintenance. Consequently where the husband makes an offer to take the wife back, if there are grounds to justify the refusal of the relief by way of restitution of conjugal rights by the husband, if he had brought such a suit even though cruelty may not be proved, the wife's claim for maintenance cannot be negatived merely by reason of such an offer. 8. This ruling has also rightly been cited as an authority for the proposition that if a wife is obliged to live away from her husband for justifiable reasons, and the husband during the pendency of a suit for maintenance makes an offer to take the wife back, the right of maintenance cannot be negatived merely on that ground. An offer of this kind must be carefully scrutinised with a view to determine whether it is a bona fide one. 9. In 'APPIBAI v. KHIMJI GOOVERJI', 60 Bom 455 : AIR 1936 Bom 138, counsel had relied upon an offer made by the defendant, for first time in his cross-examination that he was willing to take the plaintiff back if she came to live with him and his counsel repeated the same offer in his closing address. Mr. Justice B.J. Wadia at page 477, observed : "The Court is entitled to consider the bona fides of the husband's offer to take back his wife. But in my opinion the defendant's offer was not bona fide. It was not only belated, but was evidently prompted more by a desire to avoid the risk of payment of separate maintenance rather than by a desire to take back the plaintiff as his wife." 10. But in my opinion the defendant's offer was not bona fide. It was not only belated, but was evidently prompted more by a desire to avoid the risk of payment of separate maintenance rather than by a desire to take back the plaintiff as his wife." 10. The learned District Judge, without considering the offer of defendant No. 1, from this point of view, came to the conclusion that the wife was not willing to return to her husband's home and dismissed the suit. 11. Mr. Samvatsar then raises two other points in this appeal. The first point is about the second marriage already performed by defendant No. 1 and the learned counsel thinks that it is a good cause for the plaintiff for not going back to the house of her husband defendant No. 1. In our opinion, this second marriage itself would not furnish the plaintiff with a cause of action prior to the passing of Act No. XIX of 1946. Of course as observed by Pandurang Rao, J., in 'SUNDARAMMAL v. PALANIANDI MUDALI', AIR 1940 Mad 292 , in a case for maintenance by a wife against her husband under Section 488 of the Code of Criminal Procedure : "The fact of fate husband marrying a second wife though not a just ground for his wife's refusal to live with him, is still a factor to be taken into account in considering whether the offer of the husband to take her back is bona fide or not." 12. It has been much pressed upon us by Mr. Samvatsar, that the unjust aspersion on the chastity of the plaintiff cast by the defendant No. 1, amounted to cruelty and that on this ground alone the plaintiff should not be asked to return to her husband's house or forfeit her maintenance. 13. In AUGUSTIN v. AUGUSTIN', 4 All 374, Justice Straight held that a false charge by a husband against his wife of adultery, although such a charge is made wilfully, maliciously, and without reasonable or probable cause, is not an act amounting at law to cruelty, so as to entitle the wife to a judicial separation. 13a. 13. In AUGUSTIN v. AUGUSTIN', 4 All 374, Justice Straight held that a false charge by a husband against his wife of adultery, although such a charge is made wilfully, maliciously, and without reasonable or probable cause, is not an act amounting at law to cruelty, so as to entitle the wife to a judicial separation. 13a. The whole case law on this point was considered by Melvill, J., in 'YAMUNABAI v. NARAYAN moreshwar', 1 Bom 164 at pages 171 and 174, and the conclusion at which the learned Judge arrived was that we should not be justified under Hindu Law, any more than under English Law, in holding that an unfounded imputation upon a wife's chastity, however gross an outrage, is by itself sufficient to constitute legal cruelty. He further observed that in a suit between Hindus we consider that the only safe and practical criterion of cruelty is that contained in the definition which guides the English Courts, viz.: - that there must be actual violence of such a character as to endanger personal health or safety or there must be reasonable apprehension of it. 14. In 'RUSSELL v. RUSSELL', 1895 p. 315 : 64 LJ p. 105, a wife who had persistently and maliciously spread false reports of unnatural offence committed by her husband, was held not guilty of legal cruelty as there had been no bodily hurt or injury to the health or even a reasonable apprehension of it. In this case, the question of defining legal cruelty' caused the House of Lords considerable difficulty and there was no unanimity, of opinion as to what constitutes 'legal cruelty.' Out of a Bench of 9, four including the Lord Chancellor laid down that 'legal cruelty' must not be confined to cases of personal danger. The test according to them is, whether the conduct of the husband or wife has made the continuance of co-habitation and the performance of conjugal duties an impossibility; five noble Lords, on the other hand, disagreed with the above test and held that the true criterion was whether there had been injury to the body or health or the reasonable apprehension of it. Certain observations made by Lord Hershell in this case, have been quoted as showing the line of reasoning adopted by the majority of the Lords in this appeal : "I have no inclination towards a blind adherence to precedents. Certain observations made by Lord Hershell in this case, have been quoted as showing the line of reasoning adopted by the majority of the Lords in this appeal : "I have no inclination towards a blind adherence to precedents. I am conscious that the law must be moulded by adopting it on established principles to changing conditions which social development involves. But marital misconduct is unfortunately as old as matrimony itself. Great as have been the social changes which have characterised the last century in this respect, there has been no alteration and no new delevopments. I think it is impossible to do otherwise than proceed upon the old laws." These remarks prompted the Courts in some cases, to mould the established principles of law to the changing conditions of modern life. 15. In KELLY v. KELLY', (1869) 2 P and D 31 at p. 59, Channel B, in the course of the judgment observed : "It is obvious that the modes by which one of the two married persons may make the life or health of the other insecure are infinitely various, but as often as perverse ingenuity may invent a new manner of producing the result, the Court should supply the remedy by separating the parties." 16. In BRAY v. BRAY', (1828), 1 Hagg ECC, 163, Sir John Nicholl observed with regard to the conduct of the husband who accused his wife of the most abominable intercourse that can possibly be conceived, no less than incest with one of her nearest relations : "It is not, I think, possible to conceive cruelty of a more grievous character (except perhaps great personal violence) than the accusation made by this husband against his wife." 17. In HORTON v. HORTON', 1940 3 All ER 380, the cruelty alleged was that of nagging complaints of her husband's association with other women, etc. Medical evidence showed that the husband's health had been affected. It was held by Bucknill, J., that wife's conduct amounted to legal cruelty. 18. The criterion for such cases has been well laid down in 'ATKINS v. ATKINS', 1942 : 2 All ER 637, that the defaulting spouse should be proved to have been guilty of deliberate misbehaviour the effect of which either has been, or, must be, in the ordinary course, to injure the health bodily or mental of the other spouse. 18. The criterion for such cases has been well laid down in 'ATKINS v. ATKINS', 1942 : 2 All ER 637, that the defaulting spouse should be proved to have been guilty of deliberate misbehaviour the effect of which either has been, or, must be, in the ordinary course, to injure the health bodily or mental of the other spouse. Usually nagging is insufficient, unless it can be proved to have endangered the health of the spouse. Henn Collins, J., held in this case, that constant nagging will become completely intolerable and the Court would intervene for the protection of the person where bickering was of such a kind and so constant as to endanger the health of the spouse on whom it was inflicted. It is very well known, as the learned Judge observes in this case, that constant dropping of water wears the stone.' In an Indian case in Lower Burma Chief Court, Robinson, J., held in 'YIN KYE MG v. MA SEIN', 22 Ind Cas 945 (LB) that constantly charging the wife with adultery is sufficient cruelty. 19. In JEAPES v. JEAPES', (1903), 89 LT 74; 27 Digest 284, wife's health was found to be injured by the husband's spreading false reports about her and it was held to come within the meaning of legal cruelty. 20. The rule of law, has been summarised in a succinct form in Vol. X, page 652, Section 957 in Halsbury's Laws of England (Hailsham edition) : "Mere vulgar or even obscene, abuse, or false accusation of adultery, incestuous adultery, or unnatural practices are not grounds for relief except on the principle of cumulative, or constructive cruelty of a kind injuring health or calculated to do so." 21. We, therefore, come to the conclusion that an unfounded imputation, upon the wife's chastity unless it is of such a kind and so constant as to endanger the health of the wife, is not sufficient to constitute legal cruelty. 22. The learned District Judge, of course, has not considered the case from this point of view. He has written a very brief judgment and had taken for granted that cruelty in the legal sense is only physical violence. It has been laid down in several judgments of the High Courts in India that under the Indian Law cruelty in the legal sense need not necessarily be physical violence. He has written a very brief judgment and had taken for granted that cruelty in the legal sense is only physical violence. It has been laid down in several judgments of the High Courts in India that under the Indian Law cruelty in the legal sense need not necessarily be physical violence. A course of conduct, which, if persisted in, would undermine the health of the wife is a sufficient justification for refusing the husband a decree for restitution of conjugal rights: 'KONDAL RAYAR v. RANGANAYKI AMMAL', 46 Mad 791 and 'MT. CHILHA v. CHEDI', AIR 1929 Oudh 121 and lit is also well established that the grounds which would be available to a wife to defeat a suit for restitution of conjugal rights by a husband would also entitle her to live apart from her husband and claim separate maintenance. 23. Apart from all other considerations, according to Hindu Law, cruelty is not necessary, if there has been abandonment of the wife, to entitle her to separate maintenance 'SITABAI v. RAMCHANDRA RAO', 6 Ind Cas 525 : 12 Bom LR 373. According to Yajnyavalkya, a mere abandonment of his wife by a husband, if she is chaste, is sufficient to entitle her to separate maintenance. A wife forsaken by her husband without valid reasons may according to Yajnnyavalkya even, compel her husband to pay a third of his wealth, or if poor, to provide maintenance for her (See Colebrooke's Digest of Hindu Law, Vol. 1, Book 4, page 72). The texts collected in 'SAVITRIBAI v. LAXMIBAI', 12 Bom 573, at p. 597-98, seem to show that a husband who deserts a "faultless wife", or a wife "who obeys his commands", is bound to maintain her even though living apart. In 'SIDLINGAPA v. SIDAVA', 2 Bom 634, it was held that a wife could claim separate maintenance if the husband refuses to maintain her in his house. There is, in fact, no substantial difference between the case of a husband who wants to put an end to a state of cohabitation and does so by leaving his wife, and that of a husband who with like intent, is guilty of conduct equivalent to driving his wife away : 'RAM SARUP v. DEV KUMARI', AIR (37) 1950 EP 317. 24. 24. We regret to say that the approach of the subject by the learned District Judge has been rather unsystematic and somewhat defective. He ought to have given a finding on the question whether the defendants drove the plaintiff out of the house and refused to maintain her which is the subject-matter of Issue No. 1. The trial Court on the basis of the sworn testimony of Tejmal, Bansantilal, Mohammad Bux and Fakir Chand came to the conclusion that the allegations in the plaint about the plaintiff being driven out toy the defendants were correct. The learned District Judge without considering the judgment of the trial Court or attempting to discuss the evidence or even without careful analysis and appraisement of the evidence adduced arrived at no conclusion in this regard but, on other grounds, dismissed the plaintiff's suit. An appellate Court ought to pay respect to the opinion of a Judge who had the opportunity of watching the demeanour of the witnesses and listening to them, and if after doing this, he feels that there has been a wrong appreciation of the evidence by the trial Court, then, in that case he can, after giving definite reasons in his judgment, arrive at a finding contrary to that of the trial Court. The learned District Judge, appears to have fallen into an error when subsequent developments in his Court took place between the parties for arriving at a compromise and he seems to have been favourably impressed by the first two defendants, but took a rather unpleasant impression of the plaintiff's attitude in his Court. In this connection we might remind him that the ordinary rule is that a Court should give its decision on the facts and circumstances as they existed at the date of the institution of the suit and should ordinarily not take notice of the events which happened after such a date. 25. Under the circumstances, we have no alternative but to remit the case back for a finding on Issue No. 1 by the learned District Judge. In our opinion there can be no proper adjudication of Issue No. 5 unless and until first a decision is given on Issue No. 1, as the former issue being a part and parcel of the latter issue, the two could not have been treated separately. 26. In our opinion there can be no proper adjudication of Issue No. 5 unless and until first a decision is given on Issue No. 1, as the former issue being a part and parcel of the latter issue, the two could not have been treated separately. 26. We, therefore, allow the appeal and set aside the decree and judgment of the District Judge, and remit the case back to him for disposal of the first appeal, according to law, and, in the light of the observations made above, after hearing arguments afresh. Considering the relations between the parties we leave them to bear their own costs. 27. MEHTA, J. :- I agree with my learned brother Chaturvedi, J., that the case be sent back co the District Judge, Garoth, because he has not applied his mind and given his findings on the essential aspect of the case whether the defendant husband had by his behaviour and conduct abandoned the plaintiff appellant (wife) and whether the plaintiff appellant was living away from her husband for justifiable reasons. Mr. Samvatsar urged that the husband had practically driven away his wife from the house. The defendant respondent Prabhulal had married a second wife, he had cast wild aspersions against the chastity of his wife. No self respecting wife could under the circumstances of the case remain under the roof and protection of her husband. It was with a view to defeat the claim of plaintiff-appellant Sopanbai that he made pretence of taking her back. It was not bona fide offer. It appears to me that under the circumstances the conduct of the husband had made the continuance of cohabitation and performance of conjugal duties well nigh impossible. 28. The District Judge's balance of mind was tilted because he tried to persuade and bring about reconciliation but he failed in his attempt. He did not care to come to a finding as to who was responsible for desertion. He found fault with the wife for not living under the care and protection of the husband and when the latter had made that offer. Was it a bona fide offer? Case remanded.