JUDGMENT Deoki Nandan, J. - This second appeal Is directed against the decree of restitution of conjugal rightly passed on appeal by the court of the IVth Additional District Judge, Saharanpur, on the 27th March, 1976. 2. The suit for restitution of conjugal rights was instituted by the plaintiff-respondent on 6th November, 1974. The factum of marriage was not denied but it was pleaded in defence that do plaintiff had on 9th July, 1974, divorced the defendant-appellant No. 1. The trial court dismissed the suit by its judgment dated 4th January, 1975. The plaintiff appealed to the District Court. During the pendency of the appeal before the District Court, an application was moved by the defendant No. 1, who was the first respondent to the appeal, that she had re-married one Zahur Ahmed- who was not a party to the suit giving rise to this second appeal. The lower appellate Court directed the first defendant to file an affidavit in support of her claim. The defendant filed an affidavit and also a Nikabnama to establish that she had married Zahur Ahmed on the 12th January, 1973 and was pregnant from him. A birth certificate dated 16th Oct. 1975, issued by the office of the Medical Officer of Health, Nagar palika, Rtoorki, was also filed showing birth of a daughter to Zahur Ahmed. The plaintiff denied three allegations on oath in his affidavit dated 17th Oct., 1975. Although the order-sheet of the lower appellate court shows that 27th Nov,1975, was fixed for hearing of the application inc the plaintiff's objection thereto, the date fixed was adjourned to 16th Feb., 1976, on which day the entire matter was heard by the lower appellate court and the appeal was thereafter allowed by a judgment and decree dated 27th March, 1976. The judgment of the lower appellate court makes no mention of the application. 3. One of the points raised by ground No. 2 in the second appeal It that the lower appellate court acted Illegally in failing to take into consideration the fact that tho defendant No. 1 Smt Bilqis Jehan had married Zahur Ahmad and had given birth to a child from that marriage. 3. One of the points raised by ground No. 2 in the second appeal It that the lower appellate court acted Illegally in failing to take into consideration the fact that tho defendant No. 1 Smt Bilqis Jehan had married Zahur Ahmad and had given birth to a child from that marriage. The question whether the alleged marriage of the first defendant with Jahur Ahmad is a fact and, if on, what is the effect of the remarriage on the appeal which was pending before the lower appellate court, where this question was raised, has not been considered or decided by the lower appellate court. A decree for restitution of conjugal rights cannot be passed as a matter of course, even if the fact of marriage between the parties is proved and the defendant is unable to establish a good reason or excuse for refusing to live with the plaintiff There may be circumstances as in this case which may justify a refusal to a decree of restitution of conjugal rights. 4. It appears from the record of the present case that even while the suit was pending in the trial court, the plaintiff had apprehensions that the defendant would remarry someone else. her case being that, she bad already been divorced by the plaintiff. The trial court believed the defendant's case that the plaintiff had divorced 'the first defendant as alleged by her. The first defendant cannot, under the circumstances, be blamed if she did remarry Zahur Ahmed after the dismissal of the plaintiff's suit by the trial court. However, the plaintiff is denying that fact. It is also clear from the material on record that the plaintiff was educated only up to class VIII while the first defendant's father was employed in the Roorki University and it was the 'plaintiff's own case that he had gone to live with the first defendant's father to seek employment through his good offices. A Muslim husband is, in the social conditions prevalent in our country, in a superior position than his wife. He has an absolute right to divorce his wife whenever he likes. It is not known whether The plaintiff is in a position to maintain the first defendant. He should have proved his ability to do so before asking the wife to live with him. He has an absolute right to divorce his wife whenever he likes. It is not known whether The plaintiff is in a position to maintain the first defendant. He should have proved his ability to do so before asking the wife to live with him. Under the circumstances, the reason for the plaintiff's insistence for a decree of restitution of conjugal rights in spite of the wife's affirmation on oath that she has remarried, is not easily understandable. If the case of talaq given by the husband were untrue, then wife was exposing herself to a criminal charge of adultery by making the allegation of remarriage. 5. Under the circumstances, I am of the opinion that this is a fit case where the court, in exercise of its discretion, may refuse to pass decree of restitution of conjugal rights This would lead to dismissal of the suit. Under the circumstances. I also consider it proper to set aside the finding of the lower appellate court on the question about the alleged talaq between the parties. 6. In the result, the appeal succeeds and is allowed with costs. The judgment and decree of the lower court are set aside and the decree of the trial court, dismissing the plaintiff's suit is restored with costs.