JYOTHI PAL Vs. P N PRATAP KUMAR PAL

JUDGEMENT

(1.) This is a revision by wife-respondent in M C. No. 1 of 1983, on the file of the Civil Judge, Puttur (D.K), and directed against the order dated 13.11.84 passed by the Civil Judge to begin her case in the first instance by adducing evidence.

(2.) The learned Civil Judge appears to have thought that in a proceeding like this for restitution of conjugal rights brought under Sec. 9 of the Hindu Marriage Act, by reason of explanation appended to the section, the burden lies on the petitioner herein of proving her case of reasonable excuse for withdrawing from the society of her husband and, therefore, she must begin first. This appears to be wholly erroneous. The respondent herein, i.e., the husband, who has brought the proceedings for restitution of conjugal rights mac'e assertion that the wife, the petitioner herein, had withdrawn from his society without any reasonable excuse and that he was therefore entitled to a decree of restitution of conjugal rights. The wife in her objection statement, while refuting these assertions made by her hus- band, had contended that not only the husband was treating her with cruelty, but he had also driven her out of his house and therefore she had to seek shelter in the house of her parents. Therefore, the husband having come to the court for a judgment and decree in his favour on the assertion that the wife had withdrawn from his society without any reasonable excuse, the burden of proof in the proceedings lies on the husband to prove those statements of assertion made by him to have a decree in his favour and that is exactly what Sec. 9 of the HINDU MARRIAGE ACT, 1955 also says. It provides that when either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply by petition to the court for restitution of conjugal rights and the court on being satisfied of the truth of the statements made in such petition and there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly. The explanation appended to the said section does not make any change in this position of law. All that it says is that where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society. In other words, when the petitioner, husband or wife as the case may be, adduces proof regarding the withdrawal from the society of another without reasonable excuse, then the burden lies on the otherside of p, oving reasonable excuse, if any, for withdrawal from the society. Here in the case on hand, the husband having come to the court with a statement of facts asserting that the wife has withdrawn from his society without reasonable excuse, the burden lies on him to prove that statement made by him in petition and, therefore, it is for the husband-petitioner in MC. No. 1/83 to begin the case by opening and adducing the evidence and not the wife.

(3.) Having regard to the wordings of the section, no authority is necessary to say as to who must begin. Even if any authority is necessary, the authorities are not wanting. In the case of Ratnaprabhabai v Sheshrao (AIR 1972 Bombay 182), which has been referred to in Mulla's Hindu Law by Desai (15th Edn.), it has been laid down that if the petitioner were not to lead any evidence, then the petitioner would not be in a position to get any relief from the court ' because the court has to be satisfied of the truth of the statements made in the petition and he cannot be satisfied of the truth of the statements made in the petition, unless the petitioner leads some evidence to show that the statements made by him are truthful. Thereafter the initial burden will be shifted to the opponent who shall have to establish that the withdrawal from the society of another was for reasonable excuse which again may be rebutted by the petitioner and mere admission by the opponent that he or she is living away from the petitioner would not entitle the petitioner to get a decree straightway. as mere staying away would not amount to withdrawal from the society and therefore the initial burden to prove the allegation on the basis of which the decree for restitution of conjugal rights is sought is on the petitioner who comes to the court. That is also quite clear from the provisions contained in S. 23 of the Hindu Marriage Act. The court has to be satisfied about the existence of the grounds for making a decree in the proceedings instituted under the HINDU MARRIAGE ACT, 1955. As stated earlier, the explanation appended to S. 9 of Amendment Act 1976 does not maked any change in this position of law. All that it emphasises is that the burden of proving reasonable excuse shall be on the person who has withdrawn from the society. if other side, wife or husband, pleads any exception for making of such decree for restitution of conjugal rights, such as virulent and incurable form of leprosy, and that is made a ground for withdrawal of the society, it goes without saying that the burden lies on the party asserting such existence of disease. Here in the case on hand, the fact that the wife had contended that the husband was treating her with cruelty and he having driven her out of his house, she had to seek shelter in the house of her parents is no ground to hold that the initial burden lies on the wife to prove the facts stated by her in the defence. The court below was therefore not justified in calling upon the wife to begin with and the order under revision is liable to be set aside. in the result and for the reasons stated above, the revision is allowed and the order under revision is set aside.