JUDGMENT V.K. Agarwal, J. 1. This appeal under Section 28 of the Hindu Marriage Act is directed against the judgment and decree dated 3.11.1992 whereby the application of respondent Urmila Bai, wife of appellant under Section 9 of the Hindu Marriage Act for restitution of conjugal rights has been allowed and the counter claim filed by the appellant was dismissed. 2. The facts not in dispute are that the parties are Hindus. Respondent Urmila and appellant Ram Sujan were married while they were minors. 'Gauna' ceremony took place in the month of 'Baisakh' in the year 1979. The respondent resided for 3 days with the appellant after the 'Gauna' and thereafter went to her parents. After about a month, the appellant had brought the respondent to his house where they lived together as husband and wife for 5 days. Thereafter, the respondent is not residing with the appellant. 3. It is also not in dispute that the respondent had served a notice dated 4.8.1990 by registered post on the appellant, requesting him that he should take back the respondent and live with her. However, the appellant did not accede to the above request and instead sent a reply dated 13.S.1990 whereby the appellant had alleged that the respondent is living in adultery and had illicit relations with Chamru. 4. The respondent/petitioner alleged that the appellant and his family members are carrying on dairy business and had asked the respondent to bring two she-buffaloes of 'Murrah' breed in dowry. Since, the respondent and her father were poor, they were unable to meet the above damand. Though the respondent-wife was ready and willing to reside with the appellant, but the appellant refused to do so. Efforts were made by the respondent/applicant by calling the 'Panchayat' at village Khannat and Choradih thrice, but the appellant refused to take the applicant/respondent with him. He was levelled false allegation of adultery against her. 5. The appellant/non-applicant Ram Sujan denied the above allegations. It was alleged by him-that the respondent had been caught red-handed in the house of Chamru, wherein she had gone with illicit purpose and remained there for two hours after closing the door from inside. One Ramnivas and his mother had seen her there. In view of the fact that respondent is leading an immoral life, she is not entitled to the relief of restitution of conjugal rights. One Ramnivas and his mother had seen her there. In view of the fact that respondent is leading an immoral life, she is not entitled to the relief of restitution of conjugal rights. The appellant/non-applicant by way of counter-claim prayed that a decree of divorce be granted in his favour. 6. The Trial Court framed issues regarding the appellant having withdrawn from the society of respondent without any reasonable excuse and regarding the respondent having illicit relations with Chamru. The learned Trial Court by the impugned judgment has held that adultery as alleged has not been proved by the appellant by leading adequate and proper evidence in this regard; and it also held that it is established that the appellant/non-applicant has withdrawn himself from the society of respondent without any reasonable cause. Accordingly the petition of the respondent/applicant for restitution of conjugal rights was allowed, and the counter claim of the appellant seeking a decree for divorce was dismissed. 7. In this appeal, the learned Counsel for appellant has urged that there is sufficient evidence on record to indicate that the respondent was having illicit relations with Chamru and was apprehanded red-handed in his house and therefore, the appellant was entitled to a decree for divorce and the petition filed by the respondent for restitution of conjugal rights in the circumstances and in the face of the evidence on record deserves to be dismissed. 8. Learned Counsel for respondent/applicant however, has urged that the evidence regarding physical relationship of the respondent/applicant with Chamru is not sufficient. It has also been urged that it is clear from the evidence and material on record that the appellant/non-applicant Ram Sujan has withdrawn from the society of the respondent without any reasonable excuse. The learned Counsel for respondent has therefore, supported the finding and judgment of the Lower Court. 9. Since, it is undisputed that the parties a re married to each other and it is also clear from the pleadings and evidence on record that appellant is not willing to keep the respondent/applicant Urmila Bai with him; the main question that arise for consideration is that whether the respondent/'applicant is living in adultery and had continued illicit relations with Chamru and whether the appellant had withdrawn from the society of respondent without any reasonable cause. 10. The allegation of adultery has to be established by the non-applicant by cogent and believable evidence. 10. The allegation of adultery has to be established by the non-applicant by cogent and believable evidence. In this connection the appellant/non-applicant Ram Sujan has specifically admitted that he himself did not see the respondent Urmila Bai in the house of Chamru. In this connection Uddibai (N.A. 2) has been examined by him in her examination-in-chief has stated that respondent Urmila Bai was in the house of Chamru and its door was closed from inside, which was got opened by Buti Bai, the sister of Uddibai (N.A. 2). Urmila Bai was hidden in the roof top (Otari). However, in cross-examination Uddibai (N.A. 2) admitted that she did not see anything except respondent Urmila Bai entering the house of Chamru and therefore, she has contradicted her own earlier statement given in examination-in-chief. Again Uddibai (N.A. 2) admitted that she met the wife of Chamru on the same day, but did not tell her anything. This is a very unnatural conduct on the part of Uddibai (N.A. 2). Uddibai (N.A. 2) has also admitted that the incident was not disclosed by her to anybody till the 'panchayat' was convened, which again renders her conduct doubtful. It may also be noted that according to the appellant, the panchayat was convened regarding the above incident, but no independent witness, who was present in the panchayat was examined to support the above allegation. 11. It may also be noted in this connection that though it has been pleaded that Ramnivas had apprehended the respondent in the house of Chamru, but Ramnivas has not been examined. Uddibai (N.A. 2) is a close relative of respondent and therefore, her statement cannot be believed as i t does not stand the test of scrutiny, as has been noted above. 12. The applicant/respondent Urmila Bai (A.W. 1) had denied the above incident. The appellant had admitted that he had not lodged any report of the incident nor has taken any action about the incident till the present petit ion was filed by respondent/applicant. In the circumstances, the possibility cannot be ruled out that the above defence has been taken by the appellant in order to counter the allegations made by the applicant/respondent. 13. In the circumstances, the possibility cannot be ruled out that the above defence has been taken by the appellant in order to counter the allegations made by the applicant/respondent. 13. It is clear from the statement of Urmila Bai (A.W. 1) that the appellant was unwilling to keep her with him and she and her father Chitku (A.W. 2) and Purushottam (A.W. 3) have corroborated her in that regard. According "to the statements of Urmila Bai and above witnesses, it would appear that despite the panchayat having been convened by them in order to persuade the appellant to take back the respondent/applicant with him, the appellant/non-applicant refused to do so, and infact had used abusive language in the panchayat that was held in this regard. The above evidence and conduct of the appellant would clearly indicate that he was not willing to keep the respondent with him. 14. From the pleading of the appellant/non-applicant it would appear that since he doubted the chastity of respondent (his wife Urmila Bai) he was not willing to keep her.. However, since it has not been proved that the respondent is leading an adulterous or immoral life, the above allegation is not proved. Therefore, there appears to be no reasonable excuse for the appellant to withdaw from the society of the respondent. 15. The finding recorded by the learned Trial Court in this regard appears to be proper. Therefore, prayer of respondent/petitioner for restitution of conjugal rights was rightly allowed. It is also clear in the circumstances that the appellant was not entitled to the decree for divorce. Therefore, the appeal has no merit and deserves to be dismissed. 16. Accordingly, the appeal is dismissed. Parties shall bear their own costs. Counsel fee, Rs. 500/- (Five hundred), if certified.