Panchapagesa Sastri, J.
1. This is a suit for restitution of conjugal rights by the husband against his third wife. It would appear that he married the third wife when the second wife was alive. He had abandoned her and contracted this marriage. He was living for sometime with the third wife and when she became pregnant sent her to her parents' home for confinement. The husband thereupon called back the second wife to live with him and has since then been living with her. The third wife is the appellant before me, In the first Court she filed a written statement setting out that her jewels had been taken away by the husband and not returned to her and he has failed to account to her for the proceeds of her lands which he was managing. She also setup that she was told at the time of the marriage that the husband was not living with the second wife and that he had severed his connections with her and settled her maintenance claim and separated from her. Before the learnedDistrict Munsif it is stated that defendant 1 who is the appellant before me was present in Court and expressed her illingness to join her husband. So also her father defendant 2. Thelearned Judge thereupon took no evidence and decreed the suit on the ground that there was no defence to be tried. He observed that the claim for jewels and profits of land would be determined in the connected suit which was then pending and posted along with the present suit. On appeal a ground was taken that the District Munsif should have taken evidence. It does not appear whether it was really pressed before the learned Subordinate Judge, because I find no reference to this in the appellate judgment. The appellate Court agreed with the trial Court that there was no defence to be tried at all in view of the willingness of the wife to join the husband and live with him. He also stated that the controversy about the jewels will be decided in the other suit. He confirmed accordingly the decree of the trial Court.
2. In the second appeal an affidavit has been filed here by the lady wherein I find it stated that the District Munsif misunderstood what she stated before him in Court and that it was not an unconditional willingness to join the husband. In para. 4 of the affidavit she states that her marriage, was on the distinct understanding that the husband had completely broken off with the second wife and that he would have nothing to do with her thereafter and that contrary to this arrangement the husband brought her back four years back and has since then been living with her and she bore him also two children and that the husband also conveyed all his properties in favour of that second wife by a registered deed of gift dated 8th February 1943. There is no counter affidavit in answer to this.
3. It is argued now that the case should be sent back for trial and for evidence being taken. My attention is also drawn to an Act of the Central Legislature, Act XIX [19] of 1946 which enables a Hindu married woman to have a right to separate residence and maintenance under certain circumstances. Section 2 Sub-clauses (4) and (7) are relied upon. Sub-clause (4) gives her the right for separate residence and maintenance if the husband marries again. This clause can only apply if there is a marriage subsequent to the marriage with the lady who is now asking for separate residence and maintenance. In this case the third wife now wants to rely upon this provision but there has been no marriage subsequent to the marriage with her and so this clause cannot be invoked in her favour. Sub clause (7) enables her to get separate residence and maintenance for any other justifiable cause. It is argued that it would be a justifiable cause if the third wife had been married on the distinct understanding that the husband once for all severed his connection with the second wife and would have nothing more to do with her and that he and the third wife alone would be living together. Now it is alleged that the husband has taken back the second wife and is not only living with her but is practically dependant upon her bounty as he has settled all his property in her favour. It is claimed for the third wife that it would be unjust and inequitable that she shall be compelled to live with her husband and that in the words of Section 2, Sub-clause (7) of the Act there is justifiable cause for her claiming the right of separate residence and maintenance. This Act was passed after the case was dismissed by the Courts below and before the second appeal was filed here. However having regard to the present law, I am of opinion that if the facts alleged by the third wife are true it would be sufficient to enable her to claim separate residence and maintenance, It seems to me that the husband cannot be compelled contrary to his solemn pledges and understanding at the time of the marriage with the third wife to resile from that and compel her to live with him along with his second wife. It is no longer the law that cruelty or something like that should be proved to justify separate residence and maintenance. Sub-clause (7) is very wide in its language and is designedly intended to take in various circumstances in relation to the particular case before the Court which may make it unjust to compel the lady to live with the husband. It is not possible to give an exhaustive list of suchcircumstances. At the same time, it is not intended that advantage should be taken of the generality of language than to claim a right of separate residence and maintenance merely on the ground of domestic bickerings or incompatibility of temper or minor differences as are not unusual in the married lives of parties and nothing more serious is made out. I am of opinion that in the present case relief under Section 2, Sub-clause (7) can be claimed by the lady if she is able to make out her allegations, and this right is available to her under the new Act which was not in force at the time of the trial. I think an opportunity must be given to her now to establish the facts and to claim relief on such basis. I therefore set aside the decrees of the Courts below and remand the case to the trial Court for fresh disposal in the light of the foregoing observations. Costs of all Courts will abide the final result. Court-fee to be refunded. No leave.