Judgment :- 1. This second appeal arises out of a suit for restitution of congregal rights filed by the wife against her husband which was allowed by the trial court but dismissed by the court below. 2. The parties are Thiyyas hailing from Eranad Taluk in Malabar. They were married in April-May 1949 and have two children. They admittedly separated in May 1953 about three months after the birth of the second child and have been continuously living away from each other thereafter. According to the plaintiff the defendant brought about a separation by taking her from the marital home to her parent's house and abandoning her without paying anything towards the maintenance of herself or the children. She averred in the plaint that the defendant was wrongfully contemplating a second marriage and launched the suit on 3-7-1954. The defendant contended that the plaintiff refused to nurse his ailing mother who was living with them and persisted in going to her father's house rather than remain with him. And finding that she could not be persuaded to come back, he took steps with the father's consent to effect a divorce in the customary form on 23-4-1954 and that second wife had also been taken by him subsequently, in June of that year. Oral and documentary evidence was let in on both sides in support of the respective pleas. Two questions thus arose for consideration - firstly the existence or otherwise in the community of the customary form of divorce as pleaded by the defendant and secondly the termination in fact, of the marriage in such form. The trail court, on analysis of the evidence, found in favour of the plaintiff on both the questions and so allowed the suit. In appeal by the defendant, the lower appellate court found to the contrary and so dismissed the suit. Hence this second appeal by the plaintiff as above said. 3. Learned counsel for the appellant did not seriously canvass before me the finding of the learned District Judge on the first question as to the existence of the custom in regard to divorce. Indeed there can be no doubt on the matter in view to the admissions of the plaintiff's father as Pw. 2. According to Pw. 3. Learned counsel for the appellant did not seriously canvass before me the finding of the learned District Judge on the first question as to the existence of the custom in regard to divorce. Indeed there can be no doubt on the matter in view to the admissions of the plaintiff's father as Pw. 2. According to Pw. 2, the husband had always the right to divorce the wife under the customary law and such divorce was brought about by the husband breaking a thread taken out from his cloth and blowing it off saying that the marriage tie between himself and his wife was severed. Only this ceremony should take place in the house of the thandan or priest who officiated at the marriage of the couple and before an assemblage consisting of him and his relations the father or the brother of the wife as representing her and of the village elders. The plaintiff examined as Pw.1 also admitted that divorce in this form was in vogue in the community. The evidence on the defence side spoke substantially to the same effect. The difference consisted if at all in the supply by it of more details, e. g. the settlement of accounts between the husband and wife as preliminary to the sundering of their relationship. In the nature of the function, it is likely this was also there. The learned Munsiff had in fact misled himself when he overlooked the admission on the plaintiff's side. I therefore hold that the custom as to divorce did exist in the form pleaded. 4. But what learned counsel seriously contended was that the custom here suffered from lack of reasonableness and that on that account it was inadmissible. The defect according to him consisted in the single circumstance that the wife's consent had no place at all in the scheme. This aspect was not touched in the pleadings nor addressed in the court below and in my judgment, is only of academic importance in this case. Even otherwise there is no authority which has gone to the extent of holding that a custom as to divorce is on this sole account rendered "barbarous or of repugnant to equity" so as to make it unreasonable. Even otherwise there is no authority which has gone to the extent of holding that a custom as to divorce is on this sole account rendered "barbarous or of repugnant to equity" so as to make it unreasonable. For it is one thing to say that the social well-being of the community requires that marriage relationship should not be severed at the sweet will and pleasure of one of the spouses, but it is another to insist that a totally unworkable relationship should be kept inviolate because the parties cannot mutually agree to terminate it. 5. Learned counsel referred to Keshav v. Bai Gandi, (1915) 39 Bom. 538. The custom pleaded there was a custom by which the marriage tie could be dissolved by either husband or wife against the wish of the divorced party and for no reason but out of mere caprice, the sole condition attached being the payment of a sum of money fixed by the caste, which sum was liable to alteration from time to time at the will of the caste, " Rs. 55 today may Rs. 5 tomorrow". The learned judge said: "It is impossible for the court to recognise any such custom as this; it is opposed to public policy as it goes far to substitute promiscuity of intercourse for the marriage relationship." The ratio of this decision is not so much the want of mutual consent but the sanction overtly afforded by it for immoral intercourse. There is no question in this case of this aspect. For here the members of the community sanction the divorce only when the husband and wife, in the words of the plaintiff's father "cannot pull on amicably"; they also see to it that the close relations of the wife affirm such fact and further get the wife's amounts with the husband satisfactorily settled. 6. On the second question as to whether the 1st defendant went through the ceremony prescribed by the custom of divorce as above found. There is on one side the evidence of the plaintiff as Pw.1 and her father as Pw. 2 supported by Pw. 3 son of Thandan who is alleged to have officiated at the marriage between the parties and had admittedly nothing to do with the divorce. On the other side we have the evidence of the defendant as Dw.1 supported by that of his brother as Dw. 2. 2 supported by Pw. 3 son of Thandan who is alleged to have officiated at the marriage between the parties and had admittedly nothing to do with the divorce. On the other side we have the evidence of the defendant as Dw.1 supported by that of his brother as Dw. 2. The Thandan who according to them officiated at both the marriage and the divorce functions was examined as Dw. 5. Two other members of the community who claimed to have attended the divorce were examined as Dw. 3 and Dw. 4. Learned counsel sought to persuade me to prefer the plaintiff's evidence and the conclusions of the trial court in the matter. But having gone through the evidence I am afraid that it is not possible. Indeed the Munsiff practically rested his finding on matters which could not bear scrutiny, e. g, the failure of the defendant to substantiate his case of divorce in parallel proceedings for maintenance under the summary jurisdiction of the Criminal Court and the fact that he did not send reply to the notice of suit which was served on him at the same time as the summons in the case came to him. In my judgment the defence evidence is quite convincing particularly in the light of the delay which has intervened in the filing of this suit and I find, along with the learned judge that the plaintiff had been divorced by the 1st defendant and on that account is precluded from claiming restitution of conjugal rights as against the defendant. 7. It follows there is no merit in this appeal. It is therefore dismissed with costs. Dismissed.