Judgment 1. THE parties were married according to Muslim rites on March 20, 1978. A daughter was born of the wedlock in or about December, 1979. THE wife has been living with her parents since May 18/19, 1980. THE husband gave notice on 6th September, 1980 under registered cover asking her to return within a week from the receipt thereof and resume cohabiation. THE wife applied for maintenance under section 125 Code of Criminal Procedure on 15th September, 1980 in the court of the Judicial Magistrate. Thereafter she replied to the notice aforesaid on September 23, 1980. THE husband filed a suit for restitution of conugal rights in the Civil Court on October 1, 1980. THE suit was decreed by the trial court on September 3, 1981 with the finding that the alleged cruelty on part of the husband against the wife was not made out. THE Judicial Magistrate allowed the application for maintenance filed by the wife on 4th February, 1 83 and directed the husband to pay her at the rate of Rs. 200/- per month In respect of the decree passed by the Civil Court in the proceedings relating to the restitution of conjugal rights, it was observed that the decree had not become final since this was under appeal. THE wife appealed against the decree; a criminal revision was filed by the husband. Botn were heard by the Additional District Judge (Special Judge) and decided by separate judgments dated March 20, 1984. In the appeal, it was found that the wife did not have just ground to live apart. THE finding of the trial court on the point of absence of cruelty was affirmed. THE appeal in consequence was dismissed In the criminal revision he recorded the finding that in view of the decree for restitution of conjugal rights passed against the wife she could not maintain the said application as at present. THE revision was accordingly allowed. 2. THE plea taken by Smt. Mehtab Begum hereinafter referred to as the appellant in defence to the suit for the restitution of conjugal rights was that her father had given dowry to Ansar Ahmad in the amount of nearly rupees twenty- twenty-five thousand in the marriage. THE respondent, however, was not satisfied and he used to demand a Scooter, Television set and also Rs. 5,000/- in cash. THE respondent, however, was not satisfied and he used to demand a Scooter, Television set and also Rs. 5,000/- in cash. It is also alleged that he is an addict to gambling and liquor and indulged in beating her. On May 18/19, 1980 he returned home at about mid night and required her to fetch Rs. 5000/- from her parents. When she declined she was beaten and turned out of the house. This also is precisely the ground taken by her in the application filed for grant of maintenance. THE husband maintains on the contrary that there is no ill treatment mered out by him to the wife and that instead the appellant and her parents have been desirous that he should live apart from his family to which he is not agreeable. His version about the incident dated 18th May, 1980 is that two of the brothers of the appellant came over to his residence and took her away on a false pretext, namely, that the father had suffered heart-attack. It is claimed that he has been prepared all along to keep the appellant with himself and to maintain her also. Aggrieved against the appeal being dismissed by the court below in the civil proceedings and the revision in the matter of Section 125 Cr. P.C. being allowed, Smt. Mehtab Begum has preferred the second appeal and the criminal revision respectively. With the consent of the counsel for the parlies both were heard together. 3. THE concurrent finding recorded by the courts below in the civil proceedings is to the effect that there is no reliable evidence to prove that the husband used to indulge in beating the appellant or that he made demand of a scooter, television set or any amount in cash. It was also found that it is not proved that he is addict to liquor and gambling. There was some incident on the night of May 18th/19th, 1980 but the true version with respect thereto appears to be distorted on both sides. THE appellant has been interested in exaggerating the same while the account given by the other side is also unconvincing. According to the courts below this incident might not be considered sufficient or just ground entitling the wife to decline resumption of conjugal rights. THE appellant has been interested in exaggerating the same while the account given by the other side is also unconvincing. According to the courts below this incident might not be considered sufficient or just ground entitling the wife to decline resumption of conjugal rights. The finding arrived at by the courts below on the point of the absence of cruelty in the circumstances is undoubtedly of fact. 4. SRI S. S. Agnihotri learned counsel for the appellant was confronted necessarily with the question as to what is the substantial question of law arising so far as the second appeal is concerned. The finding on point of fact even if that be regarded as erroneous, cannot invite interference by this court in second appeal. It is of no consequence that some other authority may have reached a different conclusion. The decision reached may not be classed as perverse since it is not a case where the finding be said to be such as not reasonable authority may reach on the basis of the evidence placed on the record. All that SRI Agnihotri found possible to submit in this respect was that the courts below have not considered the entire material brought on the record. Upon scrutiny into the record I find that this contention lacks substance. The plaintiff-respondent examined bimseJf and another PW Mohd. Ismail. The wife came to the witness box and produced DW Dr. S. K. Zindal. Both the courts have analysed their testimony. The respondent refuted that he demanded extra dowry or that he used to indulge in beating the appellant. In the cross- examination Smt. Mehtab Begum deposed that the only issue on which they used to quarrel was his demand for extra dowry. It is worthy of note that she was unable to refer any incident apart from what according to her transpired on the night of May 18th/19th, 1980. The more important fact in my view is that on her own showing the appellant did not tell of any such thing to any one in her parents' family at any time prior to that day. The more important fact in my view is that on her own showing the appellant did not tell of any such thing to any one in her parents' family at any time prior to that day. We can understand the wife not rushing to the police station or getting medically examination done, but it seems unnatural and against the ordinary course of the human conduct that even though according to her the torture physically or mentally had commenced almost immediately after the marriage, she would have kept mum for over two years. Her parents reside in the same city as the husband at a distance of about two miles only; there is a large family consisting of several brothers. It has not been alleged that the husband restrained her any time from visiting her parents during this long period. The lower appellate court cannot be held to have erred in attaching weight to her deposition that there was no complaint of any sort made by her to any of the members of her parent's family. Another feature taken note of by lower appellate court is that in the course of the attempt made by it for reconciliation between the parties in the court, the brother of the appellant accompanying her insisted her all the time that the husband should reside away from his aged mother and two widowed sisters which according to the respondent he did not find possible to accede This in part in any case supports the version of the respondent that the bone of contention between them has been his refusal to live apart from his family. The lower appellate court has made note of it specifically in the judgment; there exists no reason for accepting that it did not thus transpire nor is any application from the side of the appellant shown to have been made before the lower appellate court refuting that such a thing transpired in the course of the attempt to reconciliation between the parties. The courts has to take into consideration the entire conduct of the parties spread over the relevant period as also submittted by the appellant's counsel. There is no denying that mental anguish may also in a given case constitute cruelty without being accompanied with . The courts has to take into consideration the entire conduct of the parties spread over the relevant period as also submittted by the appellant's counsel. There is no denying that mental anguish may also in a given case constitute cruelty without being accompanied with . Marpeet or the like but the material fact is that in the present on the evidence recorded and the attending circumstances it has been found to be non existent. The two spouses did quarrel it seems on the night of 18th/19th May, 1980, The appellant contend that she was beaten, the husband denies it. The injuries referred to by Dr. jindal upon the medical examination held on 19th May, 1980 are contusion 6 cm x 2 cm on the middle of outer aspect of the left upper arm; faint contusion 3 cm x 1 cm on the back of the abdomen on the left side and complaint of pain in the body. This he states could also result by a single fall. Be that as it may, assuming that the husband ill behaved that night and hence she left leaving behind the infant child at her husband place, the question remains whether this could in itself be enough justification for her to decline resumption of co-habitation. It is not that the incident has to be repeated necessary in each case; depending on the nature and gravity thereof in a given situation a solitary incident may as well suffice for the restitution being refused while in some other case trifling incident running in the plural may be regarded inadequate. This depends in the ultimate analysis on the facts and circumstances of a case. Mulla Mahomedan Law (16th Edition) page 268 observed that where a wife without lawful cause ceases to co-habit with her husband, the husband may sue the wife for restitution of conjugal rights. Cruelty when it is of such a character as to render it unsafe for the wife to return to her husband dominion is a valid defence to such a suit. Upon the material relevant the court must be satisfied reasonably as to the existence of such apprehension that it may decline to restore the conjugal life between the parties. Conjugal rights i. e. right of the husband or wife to the society of the other spouse is not merely creature of the statute. Upon the material relevant the court must be satisfied reasonably as to the existence of such apprehension that it may decline to restore the conjugal life between the parties. Conjugal rights i. e. right of the husband or wife to the society of the other spouse is not merely creature of the statute. Such a right is inherent in the very institution of marriage itself vide Smt. Saroj Rani v. Sudarshan Kumar Chadha, 1984 (4) SCC 90 their Lordships quoted the Law Commission 71st Report on the Hindu Marriage Act concerning the importance of the concept of the conjugal rights : "Moreover, the essence of marriage is a sharing of common life, a sharing of all the happiness that life has to offer and all the misery that has to be faced in life, an experience of the joy that comes from enjoying, in common, things of the matter and of the spirit and from showering love and affection on one's off-spring. Living together is a symbol of such sharing in all its aspects. Living apart is a symbol indicating the negation of such sharing. It is indicative of a disruption of the essence of marriage "break down" and if it continues for a fairly long period, it would indicate distruction of the essence of marriage "irretrievable breakdown."" 5. UNDER Order XXI rule 32 (1) CPC their is only financial sanction provided for execution of a decree of restitution of conjugal rights. The Supreme Court observes in the aforementioned case that this is so as an inducement by the court in appropriate case when the court has decreed restitution for conjugal rights and that the court can only decree " if there is no just reason for not passing decree for restitution of conjugal rights to offer inducement for the husband or wife to live together in order to give them an opportunity to settle up the matter amicably". The principle remains the same irrespective of whether the parties are Hindus as in that case or Mahomedan as in the present for section 125 Cr. P.C. it has been held that it is truly secular in character. It was enacted in order to provide the quick and summary remedy to a class of persons who are unable to maintain themselves. Such provisions cut accross barrier of religion vide : Mohd. Ahmed Khan v. Shah Bano Begum, 1985 AWC 557. P.C. it has been held that it is truly secular in character. It was enacted in order to provide the quick and summary remedy to a class of persons who are unable to maintain themselves. Such provisions cut accross barrier of religion vide : Mohd. Ahmed Khan v. Shah Bano Begum, 1985 AWC 557. The attempt on the part of the court should be as rightly submitted by Sri Tapan Ghosh learned counsel appearing for the respondent, to bring about a harmonious blending so far as reasonable practicable to ensure the happily and peaceful domestic married life. 6. THE question raised in the criminal revision is whether the application filed by the appellant under section 125 Cr. P.C. could be sustained despite the decree for restitution of conjugal rights. Sri Agnihotri submitted that the claim for maintenance under section 125 Cr. P.C. is an independent proceeding which is maintainable irrespective of the result in the case for the restitution of conjugal rights. This evidently is too broad a proposition to be acceded to. Where the husband's claim for the restitution fails, there may be no difficulty in the application for maintenance succeeding, provided the other conditions laid down in section 125 are fulfilled. The result may be the same where the court is of opinion on relevant consideration that the proceeding initiated for the restitution lacks in bona fides or has been resorted to for the sake merely to circumvent an otherwise legitimate claim for maintenance. But where the claim for the restitution succeeds and that too finally upon the finding that the wife has had no reasonable ground to live away from the spouse, it would be incongruous if the courts were to grant maintenance to the former in the same breath. The remedy by way of restitution of conjugal rights is based on the theory that husband and wife are entitled to the society of each other, it follows from the very nature of the matrimonial relation that they must be so entitled. Ever since the decision in Moonshee Bulloor Rucheem v. Shumsoonissa Begum and Jadoonath Bose v. Shumsoonisa Begum, (1867) 11 MIA 551 (PO) the British Indian Courts had assumed jurisdiction to entertain suits for restitution of conjugal rights. Ever since the decision in Moonshee Bulloor Rucheem v. Shumsoonissa Begum and Jadoonath Bose v. Shumsoonisa Begum, (1867) 11 MIA 551 (PO) the British Indian Courts had assumed jurisdiction to entertain suits for restitution of conjugal rights. The husband or the wife may get a decree for restitution of conjugal rights, where, either the wife or the husband as the case may be, (a) has withdrawn from the society of the other; (b) without reasonable excuse ; (c) the Court is satisfied of the truth of the statements made in the petition ; (d) there is no legal ground why the application should not be granted. 7. ENGLISH law in this respect allows as a defence any excuse, though it may not be a ground for judicial separation or nullity if marriage or divorce, but which is a 'just cause'. In the leading case of Russell v. Russell, the majority view was that a false charge of having committed an unnatural criminal offence brought by the wife against her husband, although persisted in, is not sufficient evidence of legal cruelty to support a petition by the husband for judicial separation. But as the counter-claim by the wife for restitution of conjugal rights, it was held that the Court must have power to refuse a decree for restitution wherever the result of a decree would be to compel the court to treat one of the spouses as deserting the other without reasonable cause. Following this and the House of Lords decision in Mackengiz Mackenzia, (1985) AC 390 it has been held that the conduct of the complaining spouse, though falling short of a matrimonial offence, may, if it is grave and weighty, justify withdrawl from cohabitation. Courts in our country refused to grant restitution on the basis of some 'grave and weighty reason' or ' just cause ' which fell short of a matrimonial offence Bai Jamma v. Dayalji, AIR 1920 Bombay 112 ; Jivi Bai v. Narsingh Lalbhai, (1900) 2 Bom. LR 651. The restitution of conjugal rights will not be granted, in other words, unless the court finds that the wife has withdrawn herself from the society of the husband without any reasonable cause and without consent of her spouse Jagdish Lal v. Smt. Shamo Madan, AIR 1966 Allahabad 150, Krishna Kumar Misra v. Smt. Pratibha Misra, 1965 ALJ 296 see also Mt. Kurshid Begum v. Abdul Rashid, AIR 1927 Nagpur 139 cited for the appellant in which it was held that where a wife is turned out or ill treated so as to make it impossible for her to live with her husband or where the breach is irremediable so that it is impossible for the latter to return to the former after many years' separation without leading to fresh trouble and dispute, she is entitled to maintenance by living separate from him. That is not the position on facts so far as this case is concerned. 8. THE claim for maintenance under section 125 has for its premise neglect or refusal of spouse to maintain her. Under the proviso to sub-section (2), if he offers to maintain his wile on condition of her living with him, and she refuses to live with him, the Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing, upon practically the same evidence. THE Civil Court (including in the appeal which lay both on facts and law) has found that she has had no reasonable ground for declining to cohabit with the husband. That finding is not being up set in the second appeal due to the reasons already discussed. This clearly serves to negative as at present the appellant's claim for maintenance. It may be clarified that this does not foreclose her remedy for all time to come. In case the turn of events were to show in the future that there has been no bona fide desire on the husbands part to resume matrimonal cohabitation and to perform his duties of matrimonial life, the appellant might assert a fresh cause of action to have arisen upon the circumstances then existing. But this presupposes essentially that the decree for the restitution of conjugal rights is given a fair trial both in its letter and spirit. THE respondent husband has had no opportunity thus far to avail of it due to the interim stay obtained by the appellant on April 26, 1984 as soon as the second appeal was filed. Learned counsel relied strongly on the following observations made by a Division Bench of the Saurashtra High Court in Bai Kanta Motichand v. Amratlal, 1953 Cr. THE respondent husband has had no opportunity thus far to avail of it due to the interim stay obtained by the appellant on April 26, 1984 as soon as the second appeal was filed. Learned counsel relied strongly on the following observations made by a Division Bench of the Saurashtra High Court in Bai Kanta Motichand v. Amratlal, 1953 Cr. L.J. 432 :- "We are unable to endorse the learned Magistrate's decision which implies that the wife is not entitled to have her application considered on merits merely because the husband started civil proceedings almost simultaneously with her in another Court and won in the race by obtaining a decree in his favour before him. Sec. 483 casts upon the Magistrate the responsibility of deciding the question whether the husband has refused to maintain the wife and though the decree against the wife would be a very cogent piece of evidence against her, it cannot relieve the Magistrate of this statutory obligation to consider the wife's application for maintenance on merits. The view of the learned Magistrate that he could not consider the wife's application on merits leaves out of account cases in which a husband may obtain a paper decree from a Civil Court with a view to anticipate maintenance proceedings without any intention of keeping his wife or fulfilling his obligation towardsd her". 9. THE suit for the restitution of conjugal rights and the application for maintenance were filed almost simultaneously. THE wife had not taken any active part in the suit. She was content with prosecuting her application in the Magistrate's court. THE Magistrate had rejected her application for maintenance on the ground that the decree of the Civil Court was binding on her. In the instant case, the suit was not only contested by the wife in the trial court which struck the relevant issue and recorded evidence on both sides but also pursued in appeal on facts and law in the lower appellate court and thereafter in second appeal in this Court. THE concurrent finding of fact is not open to be disturbed in the second appeal on the basis that the Magistrate is of a different opinion in the proceedings under section 125. In the Saurashtra case, moverver, their Lordships had in mind cases in which a husband may obtain a paper decree from a Civil Court with a view to anticipate maintenance proceedings. In the Saurashtra case, moverver, their Lordships had in mind cases in which a husband may obtain a paper decree from a Civil Court with a view to anticipate maintenance proceedings. This may not be construed to lay down a general proposition thereby rendering the decree for restitution of conjugal rights a nullity unmindful of the conditions under which it was passed. But if that so the meaning assigned to the above quoted observations, I am not pursuaded, I must say so with utmost respect, to subscribe to it. 10. THE decision of a learned Single Judge of this Court in Smt. Deo Mani v. Mana, 1985 A. Cr. R. 117 which also Sri Agnihotri cites arose on different facts. THE civil litigation pending in that case was a suit filed by the wife for injunction against her husband not to marry another woman. That obviously could not defeat the application for maintenance. Having regard to the decision made in the above, the second appeal fails and is dismissed with costs on parties. The Criminal revision is dismissed also. Appeal dismissed.