RADHA Vs. APPU

JUDGEMENT

(1.) This appeal is by the wife against the order in O.P. No. 287 of 1980 granting the husband's petition for restitution of conjugal rights under S.9 of the Hindu Marriage Act, 1955. The husband contended in the court below that his wife, whom he married on 29-3-1979, left him on 9-12-1979 taking away all her ornaments and other personal effects without reasonable excuse and refused to return to him ever since. The wife submitted that she was not offered a home by her husband after her marriage; the husband ill treated her; he was always drunk; he took away all her ornaments; and, she was accordingly forced to leave on 9-12-1979 in despair and fear of her life. There is paucity of evidence on either side, except for the interested testimony of the husband and the wife.

(2.) It is true that after the insertion of Explanation to S.9 by Act 68 of 1976, the burden to prove reasonable excuse for withdrawal from the society of the other spouse is upon the person who has so withdrawn. It is for the wife to show, in the present case, that she had reasonable excuse to withdraw from the society of her husband. Nevertheless, an order for restitution of conjugal rights cannot be had for the mere asking of it. The husband must show that he has a bona fide case, his allegations are true, and there is no ground why his application should not be granted. That burden is indeed upon him. But once he has discharged that onus, it would then shift to the wife to show that she has reasonable excuse to withdraw from the society of the husband. The husband has no burden to prove the contrary. That is the purport of the Explanation.

(3.) We are told that a civil suit is pending as regards the ornaments. We do not know the fate of that litigation. Perhaps evidence can be let in on the point. We are also told that no effort had been made by the court to reconcile the parties as warranted under S.23(2).