
    Madeline Petrella, Respondent, v. Anthony Petrella, Appellant.
   —Judgment for separation rendered after trial without a jury in favor of plaintiff wife awarding permanent alimony and a counsel fee, unanimously reversed, on the law and on the facts, without costs or disbursements to either party and the complaint dismissed. The trial was conducted with eminent fairness and there was no cause for counsel to criticize the conduct of the trial. The fact that defendant husband had no lawyer made it particularly appropriate for the Trial Justice to participate more actively in the conduct of the trial than would otherwise be the case. The judgment, however, is reversed and the complaint dismissed because on the record plaintiff wife testified, on cross-examination by defendant husband, to facts which demonstrated that she was responsible for serious breaches of her conjugal obligations to her husband. She admitted to repeated exclusions of her husband from various relationships she owed to him as his wife. She also persisted in external relationships, to his exclusion, to which he had a right to take exception. She also admitted to repeated efforts by the husband to work out a viable relationship between them and, from her testimony, inference was inevitable that she frustrated such efforts. While the Trial Justice was entitled to conclude that the beatings concerning which the wife testified occurred, it was also evident that the husband was provoked by the wife’s neglect of her conjugal relationships and her frustration of her husband in his effort to establish a normal marital relationship. While the husband’s conduct may not be excused, nevertheless, the wife’s failure and provocations in vital aspects of the marital relation bar her from affirmative relief (Domestic Relations Law, § 202; 16 1ST. Y. Jur., Domestic Relations, §§ 803, 809, 816, 817). Concur — Botein, P. J., Breitel, Rabin, Stevens and Staley, JJ.  