Mrs. Aruna Gordon vs Mr. G.V. Gordon on 30 November, 1999

    Mrs. Aruna Gordon vs Mr. G.V. Gordon on 30/11/1999

ORDER

   Dr. M.K. Sharma, J.

   1. 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 Whether the respondent has withdrawn from the society without any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the burden of proving reasonable excuse would be on the person who has withdrawn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 as 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excuse on the person who had withdrawn from the society, under Section 32 of the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 Pal Vs. P.N. Pratap Kumar Pai; .

   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 legality 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
Vs. Sudesh Gambhir; reported in 1978 All India Hindu Law Reporter 317, Smt.
Manjit Kaur alias Charan Kaur Vs. Jagdev Singh; reported in 1978 All India Hindu
Law Reporter 543, Smt. Reena Mitra Vs. Shri Ashesh Kumar Mitra; reported in
1991(1) All India Hindu Law Reporter 516.

   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 said 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 Vs. Sheshrao; , wherein it has been laid
down that if the petitioners, 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 in support of his contention. the
onus would only shift to the petitioner 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,
once the onus of proving issue No. 1 is 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.

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