SANDHYA BHATTACHARJEE Vs. GOPINATH BHATTACHARJEE

JUDGEMENT

(1.) The appellant-wife preferred this appeal against the decision of the learned Additional District Judge, 1st Court, Howrah, dismissing her petition under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights and also her prayer for payment of permanent alimony under Section 25 of the said Act.

(2.) On 11th Aug., 1975 the marriage between the appellant and the respondent according to Hindu rites was solemnised at Ramji Hazra Lane, P. S. Sibpur, Dist. Howrah. The respondent and his two brothers had their dwelling house at 19/1, R. N. T. Road, Harinabhi, P. S. Sonarpur. Dist. 24 Parganas. Since her marriage up to 26th Sept., 1976 the appellant, Sandhya, had lived in the said joint household of the respondent and his two brothers at Harinabhi. Sonarpur. The respondent, Gopinath, was an employee of Dunlop & Co. Ltd. He himself, resided in a bachelor's staff quarter of the said company at Shahgunj, Dist. Hooghly and visited his home at Sonarpur for one or two days every week. During the said period the appellant-petitioner, at intervals visited and stayed at her father's house at Sibpur, District Howrah. But there is some dispute between the parties regard-ing the total duration of her stay in her father's house. Since 26th Sept., 1976 the appellant, Sandhya, had been living in her father's house at Sibpur. According to the appellant, on 26th Sept., 1976 her husband had accompanied her up to Howrah Station and that since the said date in spite of repealed requests the respondent-husband did not make arrangement to take her back and had withdrawn from her society. On 12th July, 1977 she filed in the District Judge's Court, Howrah the instant application under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights which was contested by the respondent-husband. As already stated, the learned Additional District Judge, 1st, Court, Howrah dismissed the said application under Section 9 of the Hindu Marriage Act.

(3.) The principal point in this appeal is whether or not the respondent, Gopinath, had withdrawn from the society of his wife, Sandhya. The respondent denied that he had withdrawn from the society of his wife and according to him, his wife had deserted him without any reasonable excuse. In the instant case, undoubtedly the initial burden was upon the appellant, Sandhya, to satisfy the Court about the truth of the statements made in her petition under Section 9 of the Hindu Marriage Act, 1956. Gopinath did not plead any excuse for withdrawal from her wife's society. Therefore, the explanation to Section 9 of the Hindu Marriage Act was not attracted to the facts of the present case. After both parties led evidence, the said question of burden of proof was not of very great importance and upon consideration of the evidence adduced by the parties, the Court was to decide the case. Although the appellant. Sandhya, did not contend that because of alleged acts of cruelty upon her committed by the respondent and other members of his family, she was compelled to leave the respondent's joint house at Harinabhi, Sonarpur, at the trial she had sought to prove that during her stay at the respondent's house at Harinabhi, she was treated with cruelty. The learned Additional District Judge has not accepted this part of her case.