Aruna Gordon. v. G. V. Gordon.

Dr. M. K. Sharma, J.— This revision petition is directed against the order dated 18.12.1998 passed by the Additional District Judge, dismissing the application filed by the petitioner under Order 14, Rule 5, CPC praying that the burden of proving issue No. 1 should be shifted to the respondent herein.

2. A petition was filed by the respondent under Section 32 of the Indian Divorce Act, seeking for a decree of restitution of conjugal rights. The aforesaid petition was contested by the petitioner herein and on the basis of the pleadings of the parties, the following issues were framed:

(1) Whether the respondent has withdrawn from the society without any reasonable excuse? OPR

(2) Relief.

The burden of proving the aforesaid issue No. 1 was thus placed on the petitioner. Accordingly, the aforesaid application was filed by the petitioner seeking for shifting of the burden of proving issue No. 1 to the respondent. By the impugned order, the said application was dismissed holding that the burden of proving the issue No. 1 was rightly placed on the petitioner. While coming to the aforesaid conclusion, the Additional District Judge took notice of the provisions of Section 9 of the Hindu Marriage Act and after referring to the Explanation given thereto, held that the said Explanation is a guiding consideration for holding that even under Section 22 of the Indian Divorce Act, the burden of proving reasonable excuse would be on the person who has withdrawn from the society.

3. Counsel appearing for the petitioner submitted that the aforesaid order passed by the Additional District Judge is contrary to the statutory provisions of the Indian Divorce Act and the Indian Evidence Act and accordingly the same is liable to be set aside. He further submitted that the Explanation is appended to Section 9 of the Hindu Marriage Act was brought in the said Act in the year 1976 and similar amendments were also made even in the Special Marriage Act, but the Legislature thought it fit not to put the burden of proving reasonable excuse on the person who had withdrawn from the society, under Section 32 of the Indian Divorce Act, and therefore, the aforesaid Explanation could not have been held to be a guiding factor in coming to the conclusion in the present case also. In support of his contention he also relied upon the decision of the Karnataka High Court in Smt. Jyothi Pai v. P.N Pratap Kumar Pai, AIR 1987 Karnataka 24.

4. Respondent appeared in person and submitted that burden of proving reasonable excuse always lies on the person who withdraws from the society of others and, therefore, the Trial Court acted legally and within its jurisdiction in dismissing the application and rejecting the prayer for shifting the onus to the respondent. He submitted that when in similar statutes, burden of proving reasonable excuse has been put on the person who withdraws from the society of others, such provision would be a guiding factor for interpretation of the provisions of Section 32 of the Indian Divorce Act also. In support of his submission, he relied upon a decision of this Court in Ramesh Kumar Gambhir v. Sudesh Gambhir, 1978 AIHLR 317; Smt. Manjit Kaur alias Charan Kaur v. Jagdev Singh, 1978 AIHLR 543; Smt. Reena Mitra v. Shri Ashesh Kumar Mitra, 1991 (1) AIHLR 616.

5. In the light of the aforesaid submission made on behalf of the parties, I have perused the records as also the relevant provisions referred to and relied upon by the parties.

6. A decree for restitution of conjugal rights under the Hindu Marriage Act, could be sought for by an aggrieved party under the provisions of Section 9. An Explanation was appended to the aid provision by the Amendment Act 68 of 1976 which provides 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, similar amendments were also made in Section 22 of the Special Marriage Act which also deals with the provision of restitution of conjugal rights. However, such amendments were not made by the Legislature in Section 32 of the Indian Divorce Act which also deals with the provision for restitution of conjugal rights. Section 32 of the Indian Divorce Act reads as follows:

“32. Petition for restitution of conjugal rights.— When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, either wife or husband may apply, by petition to the District Court or the High Court, for restitution of conjugal rights, and the Court, on being satisfied of the truth of the statements made in such petition, and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.”

A bare perusal of the aforesaid provision would show that the amendment as appearing in the other two enactments has not been incorporated in this Act. Under the provisions of the Civil Procedure Code, it is for the party to prove the case that he pleads in the plaint/petition. Provisions of Sections 102 and 103 of the Evidence Act have also relevance.

7. Where the husband has filed a petition for restitution of conjugal rights on assertion that his wife had withdrawn from his society without any reasonable excuse, he has to prove the truth of the aforesaid statements made in such petition for, if he fails to lead any evidence, then he would not be in a position to get any relief from the Court as the Court has to be satisfied of the truth of the statements made in the petition. So long the Court is not satisfied of the truth of the statements made in the petition, no decree could be passed in favour of the petitioner. It is needless to say that unless the petitioner leads some evidence to show that the statements made by him are truthful, the Court cannot be satisfied that there is truth in the statement of the petitioner. However, if by a statutory provision the burden is placed on the person for proving reasonable excuse for withdrawal from the society, the position would be different.

8. the decisions referred to and relied upon by the respondent was delivered taking notice of the Explanation appended to the statutory provision and taking notice of the same, since no such Explanation is appended to the present provision with which I am concerned in the present petition, the ratio of the aforesaid decisions could not be said to be applicable to the facts of the present case. In this connection, reference may be made to the decision of the Bombay High Court in Ratnaprabhabai v. Sheshrao, AIR 1972 Bombay 182, wherein 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. Once the petitioner is able to lead any evidence is support of his contention, the onus would only shift to the petitioner (defendant) who shall have to establish that the withdrawal from the society of another was for a reasonable excuse.

9. In view of the aforesaid position, I am of the considered opinion that onee the onus of proving issue No. 1 placed on the respondent, it should be for him to discharge the burden in terms of the aforesaid order. The onus for proving issue No. 1 shall therefore, be initially placed on the plaintiff.

With the aforesaid modification in the order of the Trial Court, the petition stands disposed of.