JUDGMENT Deoki Nandan, J. - This is a wife's first appeal from a decree for restitution of conjugal rights. 2. The parties were married on 31st January, 1978. The parents of both the parties lived at Allahabad at a distance of about half a mile from each other. According to the husband's case, as set out in the petition for restitution of conjugal rights that was presented by him in the district court, after the marriage, the wife lived with him for short intervals but she preferred her parents house to his, and had all along "been neglecting her household duties and matrimonial obligations" towards him, although she was treated by him and his parents with great affection and love. She was under the influence of her parents. Her father was a retired employee of the Electric Supply Undertaking and found it difficult to support his family. The wife and her parents wanted and pressed him to live separately from his parents and shoulder their burden also. To this he did not agree. The wife's parents got so annoyed at this ; that they came several times to his residence and quarrelled with him and also tried to harass his parents with the help of the police. He had also reported "atrocities" of the wife's parents to the police on 12th April, 1978. This is followed by the allegation that with the intention "to fulfill their selfish moto under duress and pressure", the wife's mother came to his house "on 27-3-78 in the absense of his family members, and took away" the wife with the ornaments and clothes as specified at the foot of the petition, without the "consent and any information to the husband." On coming to know of the wife's departure when the husband and his father went to her parents and asked him to send her back with ornaments etc., she refused to come and live with the husband "under the influence and collusion of her parents." It is alleged that the wife and her parents abused and insulted the husband and his father `badly', and "they also threatended with dire consequences" if the husband or any other member of his family went to them again to bring the wife back. 3. 3. This is followed by the allegation of an attempt for amicable settlement of the matter, but in the very next breath it is said that the wife's mother came again to the husband's house next day and "quarrelled with him unnecessarily and refused to send her daughter and return his ornaments etc." The allegation is then made that the husband has come to know now that the wife "in collusion with her parents is going to marry her with someone else against the heavy money." The next allegation made in the petition is that the "wife being under the thorough influence of her parents" has deli. berately neglected her duties as a spouse and her refusal to live with the husband "amounts to abandoning him without any just and reasonable excuse." It is then said that all the husband's efforts to bring the wife back to his residence inspite of the registered notice dated 20th November, 1978 having failed, it had become necessary to file the suit. 4. The wife's case in reply was that she lived with the husband at his house, at intervals' upto 27th March, 1978, and tried her utmost to serve the husband and his family members as a devoted Hindu wife, but the family members of the husband were not satisfied with dowry and the husband's father had "a bad eye over" the wife. This was followed by the specific allegation that when the husband was on duty, his father "tried to catch the hand" of the wife and "twice he persuaded" the wife "to take wine", telling her "that it was a homoepathic medicine." It is then said that "he even misbehaved with her" on the Rickshaw when on 27th March, 1978 he took her to her parents' house. 5. The wife alleged that she "tolerated the situation in a hope that things might improve." It is also alleged that on 25th March, 1978, the wife's mother had come to meet her at the husband's place. At that time he was not at home. His father misbehaved with the wife's mother and did not allow the two to meet and shut the doors and pushed the wife's mother out. She was compelled to make a police report. At that time he was not at home. His father misbehaved with the wife's mother and did not allow the two to meet and shut the doors and pushed the wife's mother out. She was compelled to make a police report. The cause of bringing the wife from the husband's place to her parents place on 27th March, 1978 by the husband's father, was alleged to be the fact that the wife had to appear for the Intermediate Examination. It was further alleged that all her articles including jewellery, costly clothes, furniture and other things of which the details were given at the foot of the written statement, were detained. Ever since, the wife had been living at her parents' place completely neglected and deserted by the husband. On 20th April, 1978, it was alleged that the wife went to the husband's house to collect some of her jewellery for attending her cousin's marriage, but the husband's father pushed her out and shut the doors and did not allow her to bring anything. Thereafter she was laid up with chicken pox and was even admitted in the Infectious Diseases Hospital from 12th May, 1978 upto 29th May, 1978, but neither the husband, nor any member of his family came to visit her in spite of information having been sent. Lastly it was alleged that in November, 1978 the wife's mother went to the husband's place to bring about a reconciliation, but she was "physically attacked" by the members of the husband's family and the wife's mother was obliged to make a police report. It was pleaded that the husband had treated the wife with cruelty and had deserted and neglected her and was accordingly not entitled to any relief under Section 9 of the Hindu Marriage Act. The provision of Section 23 (1) (a) of the Hindu Marriage Act was also pleaded as a bar to the grant of any relief to the petitioner. 6. The following were the issues framed by the trial court, namely :- 1. Whether the respondent has withdrawn from the society of the petitioner without just and reasonable cause ? 2. Whether the petitioner has treated the respondent with cruelty ? 3. Whether the petitioner's father has tried to misbehave with the respondent ? 4. Whether the petitioner has himself deserted the respondent ? 5. To what relief, if any, is the petitioner entitled ? 2. Whether the petitioner has treated the respondent with cruelty ? 3. Whether the petitioner's father has tried to misbehave with the respondent ? 4. Whether the petitioner has himself deserted the respondent ? 5. To what relief, if any, is the petitioner entitled ? 7. The findings recorded by the trial court are, on issue No. 3, which was taken up first for consideration, that the wife's father-in-law did not misbehave with her; on issue No. 1, that the wife had withdrawn from the society of the husband of her own will without just and reasonable cause; on issues Nos. 2 and 4, that the husband had not treated the wife cruelly and had not deserted her, and on issue No. 5, that the husband was entitled to the relief claimed. In the result, the trial court granted the husband a decree of restitution of conjugal rights with the direction that the wife should go back to the husband's residence and discharge her matrimonial obligations. The parties were, however, left to bear their own costs. 8. At the out-set of the hearing, I felt that a reconciliation could probably be brought about between the parties. I talked to them. They had nothing against each other and the entire dispute between them centered round the fact that the wife wants the husband to live separate from his father but the husband does not want to do so. The question is, whether the wife can, on the facts and in the circumstances of the case, refuse to live under the roof of the husband's father, and insist upon the husband's setting up a separate home for the two of them ; or that the husband can, even with- out setting up a separate home for himself and his wife, insist upon and compel the wife to live with him at his father's house along with the other members of the husband's father's family. 9. The relevant facts brought out by the material on the record may now be stated. The parties were married on 31st January, 1978. The wife lived with the husband for 3 days after the marriage, and thereafter for 10 or 11 days, the total length of both the periods of her stay with the husband, being 13 or 14 days before she left for her parents' house on 27th March, 1978. The parties were married on 31st January, 1978. The wife lived with the husband for 3 days after the marriage, and thereafter for 10 or 11 days, the total length of both the periods of her stay with the husband, being 13 or 14 days before she left for her parents' house on 27th March, 1978. The houses of the parents of the two parties are situated at a distance of about half a mile from each other. The husband's father is a railway servant and lives in railway quarters. Besides himself, his family consists of his wife, four daughters and three sons including the husband. The living accommodation in the railway quarters seems to consist of 2 living rooms and a verandah and court-yard. According to the husband's evidence, it has three rooms. The wife was put up with the husband in what was described as the drawing room, as there was no accommodation for them to live in any other part of the house after marriage. The husband is employed in the Indian Telephone Industries at Naini, and according to the certificate of his pay on the record, his total emoluments on 1st March, 1979 amounted to Rs. 859/- per month. The wife appears to have passed the Intermediate examination and knows sewing, type-writing and short-hand. Her father was last employed with the Allahabad Electric Supply Undertaking and her mother was also employed but resigned her job on account of some injury caused by some accident some few years ago. She had also passed the Intermediate Examination. They have only one who is not living with them. 10. Apart from the aforesaid primary facts, there is the wife's allegation about the conduct of her father-in-law. That has been disbelieved by the learned Ist Additional District Judge, Allahabad. It is in the interest of the parties not to probe into this allegation any further. When I talked to the parties in an attempt to bring about a reconciliation between them, I had put it to the husband that it looked rather extra-ordinary that he wanted to take the wife back inspite of such an allegation made by her against his father. The husband said that he was willing, inspite of it. On the other hand the fact remains that the wife did make such allegations against her father-in-law and swears by them. The husband said that he was willing, inspite of it. On the other hand the fact remains that the wife did make such allegations against her father-in-law and swears by them. She even alleges that when her mother came to fetch her on 25th March 1978, she was treated roughly and was pushed out by her father-in- law, yet the wife went with the father-in-law on the same rickshaw on 27 March 1978 to her parents' place, so that she may appear at the ensuing Intermediate examination. That appeared extra ordinary for if her allegations were true and if the husband was not willing to leave the wife at her parents' place, was not there much difficulty in her going to her parents place by herself alone, rather than to take the help of the very father-in-law, who it was alleged had an evil eye on her. The explanation given by her in her statement on oath was that she had asked her husband many a time to leave her at her parents' place but he was not willing to do so and told her that she will have to go with her father- in-law. She also stated that she complained of the conduct of her father-in- law to the husband, but he did not pay any heed. It appears to me that neither of the two parties believe the allegations to be true. It is in their best interest that they forget them all, and the sooner they can do, so the better. 11. There is nothing also between the parties. The husband did not have a single word of reproach against her and all that he said in his statement on oath was that she used to ask him to take a separate house and live separately from his father. He categorically stated that he had no other complaint against her. Indeed, the short period during which the parties had lived together after the marriage could not have given rise to any such complaint as to justly the present litigation between them. I have been unable to comprehend the reason behind the present litigation. When I put it to the wife, she suggested that the husband probably wants a divorce. Indeed, the short period during which the parties had lived together after the marriage could not have given rise to any such complaint as to justly the present litigation between them. I have been unable to comprehend the reason behind the present litigation. When I put it to the wife, she suggested that the husband probably wants a divorce. So far as that is concerned, the litigation appears to have made her clever, so that she knows that after a decree for restitution of conjugal rights has stood un-obeyed for a year, either party can obtain a divorce. The fact that she has appealed from the decree and yet is willing to live with the husband, subject only to the condition that he provides her a matrimonial home, separate from the parents is sufficient to establish that she does not want a divorce. The husband on the other hand was not willing to leave his parents at any cost and if it came to choosing between his parents and the wife, he was prepared to leave the wife for his parents. I do not suggest that the husband should not do his duty to his parents or brothers and sisters, but the point is whether the wife has no say in the matter of choice of a matrimonial home, and must obey the husband, even if it comes to serving her father-in-law and mother-in-law and sisters-in-law all the time, in a crammed place, although the husband has the means to set up a separate home for himself and his wife, and give her a feeling that it was her own home in which she was living rather than to have the feeling always that she was the maid and not the mistress of the house into which she had been married. 12. The husband is well employed, not that his father is not well employed but the wife and her parents must have looked to the husband when the marriage was solemnised. The wife must have built all her hopes and aspirations around the husband. She is neither illiterate nor a rustic. She is educated and is qualified even to supplement the husband's income by taking up a job. Her mother had done so and the' insistance of the wife on a separate matrimonial home with her husband alone is easily understandable. The wife must have built all her hopes and aspirations around the husband. She is neither illiterate nor a rustic. She is educated and is qualified even to supplement the husband's income by taking up a job. Her mother had done so and the' insistance of the wife on a separate matrimonial home with her husband alone is easily understandable. The suggestion that the wife's parents wants the husband to support them is not easily acceptable, and must be discounted as an exaggerated distortion put forth for the purposes of the case. 13. It, therefore, appears to me that in the circumstances the wife's instances that the husband must make a separate matrimonial home for her, away from his parents and his brothers and sisters, is not so un-reasonable as to be brushed out of hand, and the husband's insistence on not leaving his parents' home appears to be not justified in face of the wife's insistence. 14. The law on the subject may now be examined. Section 9 of the Hindu Marriage Act, as it now stands and has stood since before the petition giving rise to this appeal was filed, or even when the marriage between the parties took place, is in the following terms : "9. Restitutions of conjugal rights :-I. When either the husband or the wife has without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply by petition to the district court, for restitutions of conjugal rights and the court on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly. Explanation - Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society." 15. The first question which arises in this context is whether the wife can be said to have withdrawn from the society of the husband. The question whether the excuse for withdrawing from the husband's society is reasonable or not will arise only when it is found that it is the wife who had withdrawn from the society of the husband. The first question which arises in this context is whether the wife can be said to have withdrawn from the society of the husband. The question whether the excuse for withdrawing from the husband's society is reasonable or not will arise only when it is found that it is the wife who had withdrawn from the society of the husband. Conjugal society requires a home and in the partiarichal system which we follow, the home is usually set up by the husband, and that is why in most cases of separation that are complained of, it is the wife who leaves the home, because the home belongs to the husband. Even so, if a husband were to throw a wife out of the home with the intention of never having her back and never giving his conjugal society to her, it would be the husband, who would he said to have withdrawn from the society of the wife. That is why in most cases while the wife alleges that the husband or his people beat her and throw her out of the house, the husband alleges that the wife left the house and disappeared of her own volition never to come back. While defining desertion as a matrimonial offence, the Supreme Court observed in Bipinchandra Jaisingh bai Shah v. Prabhavati (A.I.R. 1957 S.C. 176) that "so far as the deserting spouse is concerned, two essential conditions must be there, namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi)", and similarly "two elements are essential so far as the deserned spouse is concerned, (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention afore- said". As observed in Halsbury's Laws of England Third Edition, Vol. 12 paragraph 453 which is referred to in that decision of the Supreme Court, desertion is not the withdrawal from a place but from a state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state, the state of things may usually be termed, for short, `the home'. "The question is whether the wife had withdrawn from the society of the husband. "The question is whether the wife had withdrawn from the society of the husband. Before the husband could expect the wife to give her conjugal society to him, he must provide matrimonial home where that society can be given. He had his father's house to live in, and expects the wife to share it with him as the matrimonial home of the parties. In short the husband's house, or rather the accommodation in the so-called drawing room of that house which was given to them to stay in, was offered by the husband as the matrimonial home in which he wanted the wife to give her conjugal society to him, and at the same time also serve, or at any rate put up with, his parents and sisters and brothers who are living under the same roof and in the same court-yard. According to Halsbury's Laws of England, Third Edition, Volume 12, paragraph 498 : "It is a husband's duty to provide his wife with a home according to his circumstances. There is no absolute rule whereby either party is entitled to dictate to the other where the matrimonial home shall be ; the matter is to be settled by agreement between the parties, by a process of give and take, and by reasonable accommodation. The location of a husband's work is a most important consideration to be borne in mind in selecting the situation of the matrimonial home, though in some cases the wife's business and livelihood may be a pre-dominant consideration." "Neither party, it has been said, has a casting vote ; it has further been suggested, that if the parties are both unreasonable each might he entitled to a decree on the ground of the other's desertion, but this proposition has been doubted and disapproved. The parties should so arrange their affairs that they spend their time together and not apart, and where there is a difference of view, reason must prevail." 16. As would appear from the same quotation in paragraph 7 of the report of the case of Mrs. Swaraj Garg, v. K. M. Garg 14 (1978) D.L.T. 18 taken from Vol. 13 of the fourth edition of the Halsbury's Laws of England, the law on this point does not appear to have undergone any change in England. 17. As would appear from the same quotation in paragraph 7 of the report of the case of Mrs. Swaraj Garg, v. K. M. Garg 14 (1978) D.L.T. 18 taken from Vol. 13 of the fourth edition of the Halsbury's Laws of England, the law on this point does not appear to have undergone any change in England. 17. On the facts of the present case it appears that there was no settlement yet between the parties about the place which was to be their matrimonial home. The short period for which they were together after the marriage was spent at the husband's parents house. The wife appears to have insisted that the husband should set up a separate matrimonial home. The wife did not withdraw from any matrimonial home. A matrimonial home had yet to be set up by the husband. On the date when the parties appeared before me in person and I talked to them, the wife appeared to be keen that the husband should take a house at Naini, near his place of work and expressed her un-reserved willingness not only willingness but keenness to live with him provided he did so, even if it be for a couple of months or so, to make a trial, but the husband said, he had his duty towards his parents and brothers and sisters also, and could not leave them like that. I am, therefore, of the view that the wife cannot be said to have withdrawn from the society of the husband. On the other hand the husband is not prepared to set up home, separately from his father, and in that sense is not willing to share a separate matrimonial home with the wife. The husband is not pre- pared to give his society to the wife except at the residence of his father and only on condition that she agrees to live in the same house with his parents and brothers and sisters. Whether that is a reasonable attitude to take or not is not for this court to decide. For that is a matter entirely for the husband's own decision. But it does seem to have led him into this litigation and to the verge of losing his wife. I only wish that reason may even now prevail with the parties and they may be able to resolve the dispute. For that is a matter entirely for the husband's own decision. But it does seem to have led him into this litigation and to the verge of losing his wife. I only wish that reason may even now prevail with the parties and they may be able to resolve the dispute. The best lover for making them to do so would be to allow the appeal, set aside the decree for restitution of conjugal rights so that the parties are relegated to the position in which they were before the litigation. 18. In the view that I have taken that the wife did not withdraw from the society of the husband within the meaning of Section 9 of the Hindu Marriage Act, no other point or issue survives for consideration. I have further a feeling in this case that the parties should be helped to forget this litigation between them, and the allegation and counter allegations made by them against each other, so as to make it easier for them to reconcile them- selves to each other ; for having talked to the parties and having gone through the pleadings and the entire evidence on the record. I am of the opinion that the marriage in this case has not broken down, and given the necessary will, the parties can yet live together happily. I have, therefore, refrained from discussing the findings of the trial court on the several points and issues raised by it, or the evidence on the record. 19. In the result, the appeal succeeds and is allowed. The judgment and decree under appeal are set aside. Instead, the respondent-husband's petition for restitution of conjugal rights is dismissed. In the circumstances, there will be no order as to costs.