This is an appeal from the decree of the City Civil Judge, Madras, dated 8th February 1932, in O. S. No. 192 of 1931, a suit for restitution of conjugal rights and for other reliefs by a Hindu husband against his wife. The plaintiff is an Iyengar Brahmin and the defendant belongs to the same community. It would appear that in 1929 when the plaintiff was about 37 years old, he advertised in a newspaper for a bride which led to negotiations with the defendant's grandfather, the 3rd defendant, and these culminated in a marriage between the plaintiff and the 1st defendant, who was then a girl of about 16 years, in July 1929. The marriage was consummated at once, and after a few days' delay, the husband and wife lived together for about three months. It would appear that the wife was not quite happy in her husband's home, apparently owing to the presence of the husband's niece, one Janaki, in the house. Thereupon, for some time, the wife lived with her own people, and after some attempt at reconciliation, she filed an application for maintenance against her husband before the Chief Presidency Magistrate, Madras. There were several adjournments before the Magistrate, because the wife was willing to go back to her husband, if he was prepared to take her back. But the husband was not prepared to take her back, but was prepared to give her a maintenance allowance of Rs. 15 a month. The Magistrate accordingly ordered that the husband was to pay Rs. 15 a month as maintenance with effect from 1st June, 1930. The husband's own case was that it was on account of mutual incompatibility of temper that this agreement to pay maintenance at Rs. 15 a month was come to. Later on there was an application by the wife for an enhancement of the maintenance allowance to the Magistrate, whereupon the husband expressed his willingness to take back his wife, and the petition for enhancement was dismissed because the wife accepted the husband's offer. The husband and the wife thereupon lived together in a house in Tondiarpet for about 40 days, that is to say, in the latter part of January, 1931 and February 1931. Apparently the wife was unhappy or unwilling to remain any longer with her husband, and at her request her relations took her away from the husband's house. The present suit was filed by the husband in March, 1931, and in the plaint, the husband asked not only for restitution of conjugal rights as against his wife, the 1st defendant, but also for an injunction against defendants 2 and 3, the 2nd defendant being the mother of the 1st defendant, and the 3rd defendant being the grandfather of the 1st defendant, restraining them from interfering with plaintiff's marital rights. The husband also asked in the alternative for a declaration that the 1st defendant was entitled to maintenance only at the rate of Rs. 15 a month or at such other rate as the Court may deem fit. The 1st defendant resisted the suit mainly on the ground that she had been cruelly treated by the husband during both the periods she lived with her husband. It was also alleged that the plaintiff married her, after making a false representation that he was a bachelor. The learned Judge found that the cruelty alleged had not been proved and that the false representation made by the plaintiff about his being a bachelor did not disentitle him from getting a decree for restitution of conjugal rights. The prayer for a declaration about the maintenance having been withdrawn the plaintiff was given a decree for restitution and also was given an injunction as prayed for against defendants 2 and 3. The defendants appeal.

The only point for decision in this appeal is whether the plaintiff is entitled to a decree for restitution of conjugal rights. The learned Judge below has found that so far as the earlier stay of the husband and wife together for about 3 months in 1929 is concerned, there was no cruel treatment at all, and in this finding, I am inclined to concur. There is no clear evidence, which can be accepted, to show that there was any cruel treatment during this period. It is possible of course that the wife was not happy because of the presence of Janaki in the house and also because her husband did not permit her to visit her people as frequently as she desired. But these are not sufficient reasons for coming to the conclusion that there was any ill treatment of the wife by the husband. As to what took place in 1931 while the husband and the wife were living together in Tondiarpet, the learned Judge also thought that there was nothing which could be said to amount to ill treatment. The complaint made by the wife was that she was practically kept a prisoner in the house with a servant to keep guard over her, and that she was not permitted to see anybody or to go out. The evidence of the Advocate, D. W. 5, appears to show that there must be some substance or truth in this complaint. It would appear that the husband not only refused to allow him to see his wife but he could not even see her from a distance, as one of the compartments of the house was kept locked from the outside. It would also appear that the plaintiff admitted to him that he did not have his meals with his wife. The wife's evidence which is corroborated by the letters which she was able to send to her people with the help of the very servant who was employed to guard her shows that the husband was not talking to the wife during this period and practically treated her as a mere inmate in the house who had to cook her own food and eat it herself and that she was not permitted to go out at any time. It would also appear that towards the end of the stay, the plaintiff brought a dancing girl into the house. The learned Judge appears to have been under the impression that the question which he had to decide was one which had to be decided only according to Hindu Law. He was apparently under the impression that whether a decree for restitution should be granted or not, depended entirely on the Hindu Law. As a matter of fact, the Hindu Law is silent as regards the right of the husband to obtain the help of the Court in securing the company of his wife; though the Hindu Law prescribes the duty of obedience and also contains provisions regarding the right of the wife to claim maintenance, a suit for restitution of conjugal rights is really not contemplated by the Hindu Law proper, and such suits have been allowed on the analogy of similar suits in England which were dealt with originally under the Ecclesiastical jurisdiction. There is no stringent rule that in every case, unless actual cruelty is established, a husband is entitled to a decree for restitution of conjugal rights. Whether he is so entitled or not must be decided after a consideration of all the circumstances of the case; in other words, what is sought in such a suit is an equitable relief, and equitable considerations cannot be ignored even when they are in favour of a Hindu wife. The learned Judge has not given any weight to the circumstance that the marriage itself was brought about by a fraudulent misrepresentation by the plaintiff that he was a bachelor. At first he attempted to deny that he made such a representation by saying that he never told either the 3rd or the 1st defendant that he was a bachelor, but be admitted afterwards that he had been asked by the 3rd defendant whether he was a bachelor and that he had replied that he was a bachelor. It was admitted by him afterwards that he had married a distant relation of his several years ago, and that later on, he went through a sambandham ceremony with a Nair girl near Trichur in 1926. Even in making these admissions, the plaintiff was not quite straightforward. At first he said that one Chinnakutty claimed to be his wife and that there was an order by the Magistrate against him whereupon he gave her money and she went away. Later on, he had to admit that she was his first wife, was a distant relation of his and that he was married to her in Calcutta in 1910. As regards the Trichur wife, he stated that the marriage was not before a Registrar. But Ex.IV which is an extract from the Register of Marriages of Trichur Taluq shows that the marriage must have been before a Registrar. There is the evidence of the grandfather, who is the 3rd defendant, to the effect that the marriage would not have been gone through if the plaintiff had been known to be not a bachelor. It would also appear that the truth was ascertained only after the persistent questioning of the wife when she was living with the plaintiff in 1929, and it was discovered that the plaintiff was not a bachelor. It would also appear that after this was discovered some unpleasantness arose between the husband and the wife. This circumstance, namely, that the plaintiff by means of the false statement that he was a bachelor was able to induce the 3rd defendant, who was the guardian of the 1st defendant, to marry her to him, is one that cannot be ignored in deciding whether the plaintiff should be given a decree for restitution of conjugal rights. The equitable relief sought in this case is not to be granted to a person who has himself been guilty of fraud and acquired his right to apply for it by means of such fraud. Apart from this, I am of opinion that on the evidence there can be no real doubt that the wife was being treated cruelly during the time she was staying in Tondiarpet. It may be that she was not actually beaten but the treatment to which she was subjected cannot be said to be anything but cruel. She appears to have been kept virtually in a state of imprisonment, deprived of all society including the society of her husband. She had to resort to various subterfuges even to communicate by post with her relations and there can be no doubt that the husband was attempting all the time to compel her to give up her right to maintenance, and then set her adrift. There can be no doubt that the present suit is a mere device to get over or nullify the order of maintenance which the wife obtained from the Magistrate. I am satisfied that the husband did not file this suit because he really wanted the society of his wife, but that he has done so merely to avoid having to pay any maintenance to his wife. In these circumstances, I am of opinion that the plaintiff has not established his case, and that he is not entitled to have a decree in his favour for restitution of conjugal rights. The appeal is therefore allowed and the decree of the lower Court is set aside and the plaintiff's suit dismissed. The appellant's costs in this Court and in the Court below must be paid by the plaintiff-respondent.

N. R. R.Appeal allowed.