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AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Padhye, J.
Acts
  • s. 13 of the Hindu Marriage Act. Section 23
  • s. 9 of the Hindu Marriage Act, 1955.
  • s. 9 of the Hindu Marriage Act
  • Sub-section (2) of s. 9
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Padhye, J.
Acts
  • s. 13 of the Hindu Marriage Act. Section 23
  • s. 9 of the Hindu Marriage Act, 1955.
  • s. 9 of the Hindu Marriage Act
  • Sub-section (2) of s. 9
See more information ...
Smart Summary

Judgment Summary — Padhye, J.

Factual and Procedural Background

The opponent (petitioner in the lower Court) filed an application under s. 9 of the Hindu Marriage Act, 1955 seeking restitution of conjugal rights, alleging that the applicant (respondent) had withdrawn from his/her society without reasonable excuse. The applicant filed a written statement denying the claim and alleged, among other things, that she was treated cruelly by the opponent, was driven out of the house and was deserted.

On these pleadings the trial Judge initially framed the issue: “Whether the petitioner proves that the respondent has withdrawn from the society of the petitioner without reasonable excuse.” The matter was fixed for evidence on December 20, 1967.

Before evidence commenced the opponent applied to recast the issue into: “Whether the respondent proves that she had reasonable excuse to withdraw from the society of the petitioner?” The trial Judge allowed that application, reasoning that the petitioner could not prove a negative and that the applicant-respondent must therefore prove a positive case of reasonable excuse. The applicant-respondent challenged that order by way of a revision application to the Court whose opinion is summarized here.

Legal Issues Presented

  1. Where does the initial burden of proof lie in an application for restitution of conjugal rights under s. 9 of the Hindu Marriage Act — on the petitioner who alleges withdrawal without reasonable excuse, or on the respondent to prove she had reasonable excuse?
  2. Whether the trial Judge erred in recasting the issue so as to place the initial burden on the respondent (applicant).

Arguments of the Parties

Opponent (Petitioner in the lower Court)

  • Applied to recast the issue so that the respondent would have to prove that she had a reasonable excuse for withdrawing from the petitioner's society.
  • The underlying contention, as adopted by the trial Judge, was that a petitioner cannot be expected to prove a negative (i.e., that there was no reasonable excuse), and therefore the burden should be placed on the respondent to prove a positive case of reasonable excuse.

Applicant (Respondent in the lower Court)

  • In her written statement she alleged that she had been treated cruelly by the opponent, had been driven out of the house and deserted — facts presented to justify withdrawal from the opponent's society.
  • Challenged the trial Court's order recasting the issue and shifting the initial burden onto her by filing the present revision application.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court began by identifying the statutory framework: s. 9 of the Hindu Marriage Act permits a spouse to seek restitution of conjugal rights where the other party "without reasonable excuse" has withdrawn from society; sub‑section (2) of s. 9 limits available defences to those under s. 10 (judicial separation), s. 11 (nullity) and s. 13 (divorce); and s. 23 requires the Court to be satisfied that the ground for relief exists and that the petitioner is not taking advantage of his/her own wrong or disability before decreeing relief.

The Court stated the ordinary rule on burden of proof: generally the party who initiates proceedings (the plaintiff or applicant) bears the initial burden of substantiating allegations before obtaining a decree. The Court articulated a practical test for determining the party on whom the burden lies: ask which party would fail if the other party led no evidence.

Applying that test to the facts of this case, the Court concluded that the initial burden, however slight, rests on the petitioner who seeks restitution. If the petitioner led no evidence at all, the Court could not be satisfied of the truth of the petition's statements and consequently could not grant the relief. Therefore the petitioner must at least produce some prima facie evidence that (1) the other party is not residing with him or her (i.e., withdrawal from society) and (2) there was no apparent or reasonable excuse for such withdrawal. This minimal evidentiary showing is necessary to provide material on which the Court can be satisfied that the petition's assertions are true.

Once the petitioner has discharged the initial, light burden, the burden may shift to the opponent (respondent) to establish that either she has not withdrawn from the petitioner's society or that, if she has done so, it was for a reasonable excuse. The Court observed that a mere admission of staying away would not of itself entitle the petitioner to a decree because mere staying away does not automatically amount to withdrawal from society.

On this basis the Court found the trial Judge's action in recasting the issue so as to place the initial burden on the respondent to be erroneous. The original issue, which required the petitioner to prove withdrawal without reasonable excuse, was the proper formulation because it aligned with the statutory requirement that the Court be satisfied of the truth of the petitioner's statements and with the ordinary rule that the initiating party bears the initial burden.

Holding and Implications

The revision succeeds and is allowed.

Direct effects and orders:

  • The lower Court's order dated December 19, 1967 (which had recast the issue and shifted the initial burden onto the applicant-respondent) is set aside.
  • The issue as originally framed — “Whether the petitioner proves that the respondent has withdrawn from the society of the petitioner without reasonable excuse.” — is restored.
  • The trial will proceed as if the initial burden of proof is on the petitioner-opponent to prove his/her case; thereafter the burden may shift according to the evidence led.
  • The opponent (petitioner) was ordered to pay the costs of the applicant (respondent).
  • The application (the revision) is allowed.

The opinion sets out and applies the ordinary evidentiary principle that the party initiating proceedings must discharge an initial prima facie burden to enable the Court to be satisfied of the petition's truth, and it applies that principle to proceedings under s. 9 of the Hindu Marriage Act. The opinion does not describe any broader precedent-setting intention beyond the reasoning and orders set out above.

Show full summary ...

    Ratnaprabhabai Sheshrao Bhore v. Sheshrao Shankarrao Bhore

    Padhye, J.:— The opponent had filed a petition in the lower Court under s. 9 of the Hindu Marriage Act for restitution of conjugal rights alleging that the applicant had without reasonable excuse withdrawn from the society of the opponent. The applicant opposed the said petition and filed her written statement alleging, inter alia, that she was treated cruelly by the opponent and was driven out of the house and was deserted. On these pleadings, the learned trial Judge initially framed the following issue:

    “Whether the petitioner proves that the respondent has withdrawn from the society of the petitioner without reasonable excuse.”

    2. The parties went to trial on this issue and the case was fixed for evidence on December 20, 1967.

    3. Before the commencement of the evidence the opponent filed an application for recasting the aforesaid issue and wanted the issue to be framed in these terms:

    “Whether the respondent proves that she had reasonable excuse to withdraw from the society of the petitioner?”

    4. This application was granted by the learned trial Judge, as, according to him, the petitioner-opponent could not prove a negative fact and it was for the applicant-respondent to prove a positive fact, namely, that there was reasonable excuse for her for withdrawing herself from the society of the opponent petitioner. He thus allowed the application of the opponent and directed the applicant-respondent to prove her case. This order is challenged in this revision application.

    5. The application for restitution of conjugal rights has to be made under s. 9 of the Hindu Marriage Act, 1955. It enables either the husband or the wife to make an application for restitution of conjugal rights who alleges that the other party without reasonable excuse has withdrawn from the society of the other. On such an application being made, the Court has to be satisfied of the truth of the statements made in such petition and on further finding that there is no legal ground why the application should not be granted, has to make a decree for restitution of conjugal rights. Sub-section (2) of s. 9 limits the defences to be raised by the other side in answer to a petition for restitution of conjugal rights. These defences are limited to the grounds which can be urged for judicial separation under s. 10, or for nullity of marriage under s. 11, or for divorce under s. 13 of the Hindu Marriage Act. Section 23 enjoins on the Court to pass a decree if the Court is satisfied that any of the grounds for granting the relief exists and the petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief and satisfies the other conditions given in s. 23 and it is only in such a case, the Court can decree the claim, whether the proceeding is defended or not.

    6. Ordinarily, when a litigant comes to Court with certain allegations and claims a relief on the basis of these allegations, it is for him to substantiate those allegations, before he can get a decree. Normally, therefore, the initial burden is on the plaintiff or the applicant who initiates the proceedings and the evidence given on behalf of the plaintiff or the applicant has then to be rebutted by the opponent. There may be cases where the burden may lie with respect to certain issues on the opponent and then the plaintiff or applicant will have to rebut the evidence given on behalf of the opponent. There may be other cases where the burden may shift from one party to the other from time to time and there may also be eases where the initial burden, however slight it may be, rests on a particular party and then shifts to the opposite party. To me, the test to find out on whom the burden of proof lies will be to see as to which party would fail if no evidence is led by the other party.

    7. To me, it appears that this is a case where the initial burden, however slight, rests on the petitioner who comes to the Court. 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 it cannot be satisfied of the truth of the statements in the petition, unless the petitioner leads some evidence to show that the statements made by him are truthful. Section 23 makes it further clear that the Court has to be satisfied that the ground for granting the relief exists and this is so whether the proceeding is defended or not. We may contemplate a case where the petitioner comes to the Court with the allegation that the other party has without reasonable excuse withdrawn from his or her society and the other party is not represented. In such a case without anything more, no decree could be passed in favour of the petitioner because merely by making the allegations in the petition, the Court will not be able to satisfy itself of the truth of the statement made in such application. Some prima facie evidence will have to be given by the petitioner to show, in the first place, that the other side has withdrawn from the society and in the second place, there was no reasonable excuse for the same. No doubt this initial burden, in the first instance, is light inasmuch as the petitioner has only to show that the other side is not residing with him or her for no fault of his or hers and that there was no apparent reason for the other party to withdraw himself or herself from the society of the petitioner. This is the minimum which will have to be established by the petitioner in a case whether the proceeding is defended or not. Unless that is done, there will be no material for the Court to get itself satisfied of the truth of the statements made in the petition. This is why I say that the initial burden will lie on the petitioner and thereafter it will shift to the opponent who shall have to establish that it was not that party who has withdrawn from the society of the other and that if he or she has so withdrawn, it was for reasonable excuse, which again, may be rebutted by the petitioner. A 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. In this view the initial burden being on the petitioner the issue as originally framed putting the initial burden on the petitioner was proper and the learned trial Judge was in error in recasting the issue as proposed by the opponent and throwing the initial burden on the applicant-respondent.

    8. The order of the lower Court dated December 19, 1967 is, therefore, set aside and the issue as originally framed will be restored and the trial will proceed as if the initial burden was on the petitioner-opponent to prove his case. The revision thus succeeds and is allowed. The opponent will pay the costs of the applicant.

    9. Application allowed.

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    Comments

    Ratnaprabhabai Sheshrao Bhore v. Sheshrao Shankarrao Bhore
    (Nov 15, 1971)