SREEVALSAN PILLAI Vs. THANKAMONI AMMA

JUDGEMENT

(1.) The petitioner husband in O.P. (H.M.A.) No. 59 of 1978 of the Sub Court. Quilon, is the appellant in M.F.A. No. 589 of 1981. In Crl. R.P. No. 91 of 1982 he is challenging the order in Crl. R P. No. 94 of 1980 of the Sessions Court, Quilon reversing the order of the Chief Judicial Magistrate, Quilon in M.C. No. 109 of 1979, where he was the counter petitioner. The husband is hereinafter referred to as the petitioner and the wife as the respondent. The petitioner filed O.P. (H.M.A) No. 59 of 1978 before the Sub Court, Quilon under S.9 of the Hindu Marriage Act for restitution of conjugal rights. The petitioner married the respondent on 20-3-1972. The allegation in the petition was that they lived together in the house of the petitioner till 27-12-1976. A child was born in the wedlock on 18-8-1974. On 29-12-1976 the respondent left his house without his knowledge and consent. The petitioner sent a notice requiring the respondent to come and live with him. She replied raising false contentions. It was under those circumstances that the petition was filed. In the objections filed by the respondent she contended that the petitioner disposed of her ornaments and appropriated the amount. He was cruel to her and often threatened her He also compelled her to mortgage another item of property belonging to her and to give him the proceeds. The petitioner himself took the respondent and child to her house and wanted her brother to withdraw a suit filed by him to set aside a settlement by which properties were allotted to the respondent. Petitioner threatened that until the civil suit is withdrawn, he will not take her back. Thereafter he neglected to maintain her and her child. After examining the evidence, the Sub Court found that the petitioner was cruel towards the respondent and held that the respondent had reasonable excuse to withdraw from the society of the petitioner.

(2.) Learned counsel for the respondent raised a preliminary objection that the appeal itself is barred by time. His contention is that the application for certified copy of the order was dismissed for non payment of printing charges. Subsequently that application was restored after 11 months. According to learned counsel the period between the dismissal and restoration of the copy application cannot be considered as "time requisite" for getting a copy, within the meaning of S.12 of the Limitation Act. He also relied on Ramabhadra v. Kadiriyasami ( AIR 1922 PC 252 ), Jijibhy N. Surty v. T. S. Chettyar ( AIR 1928 PC 103 ), Parbati v. Bhola (ILR 12 Allahabad 79 FB), Bechi v. Ahsan-Ullah Khan (ILR 12 Allahabad 461 FB), Kishore Chand v. Bahadur (AIR 1936 Lahore 771), Gabriel Christian v. Chandra Mohan (AIR 1946 Patna 45) and State v. Midnapore Commercial Co., (AIR 1978 Calcutta 358 FB). His contention is that 'time requisite' means time properly required for obtaining copy. Relying on Ramanuja Ayyangar v. Narayana Ayyangar (ILR 18 Madras 374) and Berumull Sowcar v. Velu Gramany ( AIR 1942 Mad. 369 ) the learned counsel for the appellant contended that the court has the power to restore the copy applications. He also relied on the judgment of the Supreme Court in State of U.P v. Maharaja Narain ( AIR 1968 SC 960 ) where the court after considering Ramabhadra v. Kadiriyasami (AIR 1922 PC 252) and Jijibhoy N. Surty v. T. S. Chettyar (AIR 1928 PC 103) held as follows:

(3.) Learned counsel for the petitioner submitted that the burden of proof to establish that there is reasonable excuse to withdraw from the society of the other spouse is on the spouse who alleges such reasonable excuse. Whether under S.9 of the Act the petitioner has to prove that the respondent has withdrawn from bis society without reasonable excuse or whether once it is established that the respondent has withdrawn from petitioner's society, the respondent herself is to establish that there is reasonable excuse for her action, was a question which came up for consideration by different Courts. Sm. Rebarani v. Ashit (AIR 1965 Calcutta 162), Konna v. Krishanswami ( AIR 1972 Mad. 247 ), Ratnaprabhabai v. Sheshrao (AIR 1972 Bombay 182) P. S. Ramarao v. P. R. Krishnamani ( AIR 1973 Mad. 279 ) and G. Krishnamurthy v. B. P. Syamanthakamani (ILR 1977 (1) Karnataka 246) are some of the decisions cited at the bar. It may be noticed that almost all the above said authorities did not consider the 1976 amendment introduced by Act 68 of 1976 whereby Explanation has been added to S.9 of the Hindu Marriage Act. That Explanation is as follows:-