On perusal of the aforesaid section, it will appear that the
provision requires that if one of the parties i.e. either the husband
or the wife withdraws from the society of the other and that too
without any reasonable excuse, then the petition for restitution of
conjugal rights filed by the other side would be maintainable and
once the Court holds that there was no reasonable excuse for
withdrawal of one of the parties from the society of the other, it
may pass a decree of restitution of conjugal rights accordingly. It
is the party withdrawing from the society of the other side who
has to prove that there is reasonable excuse for him/her for such
withdrawal and the burden of proof would lie on him/her.
12. However, a wife cannot be compelled to stay with her husband or
her in-laws in adverse circumstances, particularly when she has
been physically and mentally tortured and has not been properly
treated with love and affection by her husband and the in-laws.
She has to lead her life in a dignified manner in the house of her
in-laws and any kind of willful conduct on the part of the husband
or her in-laws, which shakes the confidence of the wife including
the fact that her life would be under threat, may be sufficient for
her to withdraw from the society of her husband and stay
separately.
13. No doubt, the burden is on the party, who has withdrawn from the
society of the other to prove the reasonable excuses, but strict
proof of such matter should not always be insisted upon,
inasmuch what would be the proper reasonable excuse for a party
to withdraw from the society of the other would depend upon the
facts and circumstances of each case and no straight jacket
formula can be laid down. It may vary from house to house or to
person to person. It all depends upon the type of the life the
parties are accustomed to or their economic and social conditions.
It may also depend upon their culture and human values to which
they attach importance. In some cases, even a single incident
would be sufficient for a party to withdraw from the society of the
other. For example, if a wife does not feel safe in the company of
her husband and in-laws and her life is in danger and she is
physically and mentally tortured in connection with the demand of
dowry or the husband brings unfounded allegations against her
character or keeps illicit relationship with another lady then the
wife would certainly be justified in withdrawing from the company
of the husband. These grounds are not exhaustive, but have been
given by way of mere illustration.
JHARKHAND HIGH COURT
F A No.172/2011
Smt. Rita Prajapati
V
Sanjay Kumar,
P R E S E N T
E MR. JUSTICE SHREE CHANDRASHEKHAR
MR. JUSTICE RAJESH SHANKAR
Citation: AIR 2017 Jharkhand 41
1. The present appeal is directed against the judgment dated 23rd
September, 2011, decree signed on 14th October, 2011, passed by
Sri Satish Chandra Singh, learned Principal Judge, Family Court,
Jamshedpur in connection with Matrimonial Suit No.121 of 2008,
whereby the appellant-wife has been directed to restore conjugal
life with the respondent-husband within thirty days from the date
of the order, failing which the respondent-husband would be at
liberty to restore the same through due process of law.
2. The background of the present appeal is that the respondent filed
a matrimonial suit, being Matrimonial Suit No.121 of 2008, in the
court of learned Principal Judge, Family Court, Jamshedur under
Section 9 of the Hidu Marriage Act, 1955 for restitution of conjugal
rights with the appellant.
The facts of the case are that both the parties are legally
wedded husband and wife and their marriage was solemnized on
12th May, 2006 at Sonuwa Railway Station, District West
Singhbhum, according to Hindu rights and customs. Both the 2
parties have been living separately since 12th October, 2007.
According to the Respondent-husband, his wife had been staying
separately without any reasonable excuse, whereas stand of the
Appellant-wife was that her husband used to torture her and
wanted to kill her and as such she went back to her father’s house
to save her life from the husband. Further case of the appellant
was that the respondent never attempted to bring her back and
wanted to grab money from her father because she happens to be
the sole daughter of her parents.
3. In support of his case, the respondent examined three witnesses
viz. P.W.1-Sanjay Kumar (respondent himself), P.W.2-Tun Tun
Singh and P.W.3-Shiv Kumar Singh. On the other hand, the
appellant examined two witnesses viz. R.W.1-Aditya Kant Nayak
and R.W.2-Gopal Prajapati (father of the appellant). However, the
appellant herself was not examined as witness.
4. Learned court below, while adjudicating the matrimonial suit filed
under Section 9 of the Hindu Marriage Act, 1955, framed issues;
the major one being “whether the respondent-wife (appellant
herein) had withdrawn herself from the society of the petitioner
(respondent herein) without any reasonable excuse?”
5. P.W.1-Sanjay Kumar, while supporting his case, had stated that
his marriage with the appellant was solemnized according to
Hindu Rites and Customs on 12th May, 2006, but she left the
matrimonial home on 12th October, 2007 and went back to her
Maike (parental home). He made sincere efforts to bring her back
to the matrimonial home, but she refused to come back.
P.W.2-Tun Tun Singh, who was known to both the parties,
also supported the case of the respondent and stated that since
12th October, 2007, the appellant has been living separately in her
Maike and when she was requested by the respondent-husband to
come back to the matrimonial home, she completely refused to
come back. He also stated that the appellant stayed in her
matrimonial home only for one year and five months. He,
however, denied the fact that the respondent ever tortured the
appellant.
P.W.3-Shiv Kumar Singh, who was also known to both the
parties, also supported the case of the respondent and stated that
the appellant had been staying in her Maike since 12th October, 3
2007 and despite the efforts made by the respondent, she refused
to come back to the matrimonial home. He also stated that the
appellant had stayed in the matrimonial home only for a period of
one year and five months. He further stated that the respondent
works as a contract labour and denied the fact that the
respondent ever tortured the appellant prior to leaving the
matrimonial home.
On the other hand, R.W.1-Aditya Kant Nayak though led his
examination-in-chief through an affidavit, but was not crossexamined
by the respondent and the learned court below
expunged his evidence. R.W.2-Gopal Parjapati, who is father of
the appellant, stated that the marriage between the appellant and
the respondent was solemnized on 12th May, 2006 according to
Hindu rites and customs. The appellant is his sole daughter, who
is affected by Polio since her childhood. He further deposed that
the appellant did not want to go back to her Sasural as she had no
confidence upon her husband and his family members. He also
deposed that the Respondent-husband did not want to keep the
appellant with him and has filed the said suit only to save himself
from a dowry case, which could have been lodged against him.
During his deposition, he also stated that he would never send his
daughter to her in-laws house.
6. Only one document was exhibited on behalf of the respondent,
which was a letter issued by the In-charge of Mahila Cell,
Jamshedpur, stating the fact that she tried to resolve the issue
between the appellant and the respondent, but the appellant did
not want to stay with the respondent and on asking, the appellant
told her that she wants to get divorce from the respondent.
7. On the basis of the aforesaid facts stated on behalf of both the
parties, it would be important to analyze, as to whether the
learned court below properly appreciated the evidence adduced on
behalf of both the parties.
8. It is worth noticing that R.W.1-Aditya Kant Nayak, a neighbour of
the appellant, had though led his examination-in-chief before the
learned court below on 5th February, 2011 and, thereafter, the
case was fixed on 10th March, 2011 for his cross-examination, the
same was not done and on 9th May, 2011 the learned court below
closed his evidence, as he was not present on that date, under the
notion that on 20th December, 2010, last opportunity was given to
the appellant’s side to adduce evidence. We are of the view that
the learned court below has committed an error in relying upon
the order dated 20th December, 2010 by which last opportunity
was given to the appellant’s side to adduce the evidence, since
R.W.1-Aditya Kant Nayak was examined much after the said date
i.e. on 5th February, 2011 and the case was running for his crossexamination.
The said witness was an important one for proving
the case of the appellant, as it would be reflected from his
examination-in-chief that he has fully supported the case of the
appellant, stating that the appellant had told him that she used to
be tortured by the respondent and his family members and they
used to insist that the properties of her father should be
transferred in their names. He has also stated that the respondent
and his family members used to make demand of dowry from the
father of the appellant. He was also informed that the respondent
was making a plan to administer poison upon the appellant, but
somehow she came back to her father’s house at Sonuwa.
9. The learned court below erroneously closed the evidence of
R.W.1-Aditya Kant Nayak and thereby expunged his evidence. By
doing so, the learned court below came to an erroneous factual
conclusion that the appellant had withdrawn herself from the
society of the respondent without any reasonable excuse.
10. Now it would be appropriate to analyze the provision of Section 9
of the Hindu Marriage Act, 1955. Section 9 of the said Act reads
as under:-
“9. Restitution of conjugal rights.- When either the
husband or the wife has, without reasonable excuse,
withdrawn from the society of the other, the aggrieved
party may apply, by petition to the district 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.
[Explanation.- 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.]”
11. On perusal of the aforesaid section, it will appear that the
provision requires that if one of the parties i.e. either the husband
or the wife withdraws from the society of the other and that too
without any reasonable excuse, then the petition for restitution of
conjugal rights filed by the other side would be maintainable and
once the Court holds that there was no reasonable excuse for
withdrawal of one of the parties from the society of the other, it
may pass a decree of restitution of conjugal rights accordingly. It
is the party withdrawing from the society of the other side who
has to prove that there is reasonable excuse for him/her for such
withdrawal and the burden of proof would lie on him/her.
12. However, a wife cannot be compelled to stay with her husband or
her in-laws in adverse circumstances, particularly when she has
been physically and mentally tortured and has not been properly
treated with love and affection by her husband and the in-laws.
She has to lead her life in a dignified manner in the house of her
in-laws and any kind of willful conduct on the part of the husband
or her in-laws, which shakes the confidence of the wife including
the fact that her life would be under threat, may be sufficient for
her to withdraw from the society of her husband and stay
separately.
13. No doubt, the burden is on the party, who has withdrawn from the
society of the other to prove the reasonable excuses, but strict
proof of such matter should not always be insisted upon,
inasmuch what would be the proper reasonable excuse for a party
to withdraw from the society of the other would depend upon the
facts and circumstances of each case and no straight jacket
formula can be laid down. It may vary from house to house or to
person to person. It all depends upon the type of the life the
parties are accustomed to or their economic and social conditions.
It may also depend upon their culture and human values to which
they attach importance. In some cases, even a single incident
would be sufficient for a party to withdraw from the society of the
other. For example, if a wife does not feel safe in the company of
her husband and in-laws and her life is in danger and she is
physically and mentally tortured in connection with the demand of
dowry or the husband brings unfounded allegations against her
character or keeps illicit relationship with another lady then the
wife would certainly be justified in withdrawing from the company
of the husband. These grounds are not exhaustive, but have been
given by way of mere illustration. 6
14. In the case of Anil Rishi Vs. Gurbaksh Singh, reported in
(2006)5 SCC 558, in Paragraphs-9 and 19, the Hon’ble Supreme
Court, while distinguishing the expression between “Burden of
Proof” and “Onus of Proof”, has held as under:-
“9. In terms of the said provision, the burden of
proving the fact rests on the party who substantially
asserts the affirmative issues and not the party who
denies it. The said rule may not be universal in its
application and there may be an exception thereto. The
learned trial court and the High Court proceeded on the
basis that the defendant was in a dominating position
and there had been a fiduciary relationship between the
parties. The appellant in his written statement denied
and disputed the said averments made in the plaint.
19. There is another aspect of the matter which should
be borne in mind. A distinction exists between burden of
proof and onus of proof. The right to begin follows onus
probandi. It assumes importance in the early stage of a
case. The question of onus of proof has greater force,
where the question is, which party is to begin. Burden of
proof is used in three ways;
(i) to indicate the duty of bringing forward evidence
in support of a proposition at the beginning or
later;
(ii) to make that of establishing a proposition as
against all counter-evidence; and
(iii) an indiscriminate use in which it may mean either
or both of the others. The elementary rule in
Section 101 is inflexible. In terms of Section 102,
the initial onus is always on the plaintiff and if he
discharges that onus and makes out a case which
entitles him to a relief, the onus shifts to the
defendant to prove those circumstances, if any,
which would disentitle the plaintiff to the same.”
15. For proper adjudication of the matter, relevant provisions of
Sections 101, 102 and 103 of the Indian Evidence Act and the
provision of Order XVIII Rule 1 of the Code of Civil Procedure
Code are reproduced herein below:-
“Indian Evidence Act:
101. Burden of Proof:- Whether desires any Court
to give judgment as to any legal right or liability
dependent on the existence of facts which he
asserts, must prove that those facts exist.
When a person is bound to prove the existence of
any fact, it is said that the burden of proof lies on
that person.
102. On whom burden of proof lies.- The burden of
proof in a suit or proceeding lies on that person
who would fail if no evidence at all were given on
either side.
103. Burden of Proof as to particular fact.- The
burden of proof as to any particular fact lies on
that person who wishes the Court to believe in its
existence, unless it is provided by any law that the
proof of that fact shall lie on a particular person.7
Civil Procedure Code Order XVIII Rule 1
CPC:- Court may grant time and adjourn hearing.-
(1) The Court may, if sufficient cause is shown
The plaintiff has the right to begin unless the
defendant admits the facts alleged by the plaintiff
and contends that either in point of law or on
some additional facts alleged by the defendant the
plaintiff is not entitled to any part of the relief
which he seeks, in which case the defendant has
the right to begin.”
16. On the strength of the aforesaid discussions, it is held that the
explanation to Section 9 of the Hindu Marriage Act, 1955 does not
make any change in the concept of Indian Evidence Act and the
Civil Procedure Code and the initial burden to prove the allegation
on the basis of which restitution of conjugal rights is sought is on
the person who comes to the Court.
17. The term “Reasonable Excuse” has not been defined under the
Hindu Marriage Act, 1955. The aspect concerning “Reasonable
Excuse” is a question of fact and each case is to be considered
independently to the facts and circumstances of the case. The
petitioner by filing an application under Section 9 of the Hindu
Marriage Act has to establish the following aspects:-
(a) That the respondent has withdrawn from the society of
himself/herself; and
(b) That such withdrawal was without reasonable excuse.
18. In the case of Saroj Rani Vs. Sudarshan Kumar Chadha,
reported in AIR 1984 SC 1562, in Paragraphs-14 and 15, the
Hon’ble Supreme Court has held as under:-
“14. ……It may be mentioned that conjugal rights may
be viewed in its proper perspective by keeping in mind
the dictionary meaning of the expression “conjugal”.
Shorter Oxford English Dictionary, 3rd Edn. Vol.I page
371 notes the meaning of „conjugal‟ as “of or pertaining
to marriage or to husband and wife in their relations to
each other”. In the Dictionary of English Law, 1959 Edn.
At page 453, Earl Jowitt defines „conjugal rights‟ thus:
“The right which husband and wife have to each
other‟s society and marital intercourse. The suit
for restitution of conjugal rights is a matrimonial
suit, cognizable in the Divorce Court, which is
brought whenever either the husband or the wife
lives separate from the other without any
sufficient reason; in which case the court will
decree restitution of conjugal rights (Matrimonial
Cases Act, 1950, S.15), but will not enforce it by
attachment, substituting however for attachment,
if the wife be the petitioner, an order for
periodically payments by the husband to the wife
(S.22).
Conjugal rights cannot be enforced by the act of
either party, and a husband cannot seize and 8
detain his wife by force (R.V. Jackson
(1891)(1QB671)”.
15. In India it may be borne in mind that conjugal
rights i.e., right of the husband or the wife to the society
of the other spouse is not merely creature of the statute.
Such a right is inherent in the very institution of
marriage itself, see in this connection Mulla‟s Hindu Law-
15th Edn. P.567-Para 443. There are sufficient safeguards
in S.9 to prevent it from being a tyranny. The importance
of the concept of conjugal rights can be viewed in the
light of Law Commission-71st Report on Hindu Marriage
Act, 1955- “Irretrievable Breakdown of Marriage as a
Ground of Divorce, Para 6.5 where it is stated thus:
“Moreover, the essence of marriage is sharing of
common life, a sharing of all the happiness that
life has to offer and all the misery that has to be
faced in life, an experience of the joy that comes
from enjoying, in common things of the matter
and of the spirit and from showering love and
affection on one‟s of spring. Living together is a
symbol of such sharing in all its aspects. Living
apart is a symbol indicating the negation of such
sharing. It is indicative of a disruption of the
essence of marriage- “Breakdown”- and if it
continues for a fairly long period, It would indicate
destruction of the essence of marriage-
“irretrievable break down”.”
19. In the another case of Chetan Dass Vs.Kamla Devi, reported
in AIR 2001 Supreme Court 1709, the Hon’ble Supreme Court
has held as follows:-
“Matrimonial matters are matters of delicate
human and emotional relationship. It demands
mutual trust, regard, respect, love and affection
with sufficient play for reasonable adjustments
with this spouse. The relationship has to conform
to the social norms as well. The matrimonial
conduct has now come to be governed by statute
framed, keeping in view such norms and changed
social order. It is sought to be controlled in the
interest of the individuals as well as broader
prospective, for regulating matrimonial norms for
making of a well knit, healthy and not a disturbed
and porous society. Institution of marriage
occupies an important place and role to play in the
society, in general”.
20. In the present case, since the respondent approached the court
below seeking restitution of conjugal rights in his favour on
assertion that the appellant had withdrawn herself from his
society without any reasonable excuse, the onus of proof lied
upon him. The respondent though led evidences through himself
as P.W.1, P.W.2-Tun Tun Singh and P.W.3-Shiv Kumar Singh,
learned court below has completely erred in not relying on the
evidence of R.W.2-Gopal Parjapati (father of the appellant) and
has also committed serious error in expunging the evidence of
R.W.1-Aditya Kant Nayak, who has fully supported the case of the
appellant, giving the reasons of her coming back to the parental
house, including the fact of threat to her life at the instant of the
respondent and his family members. Non-appearance of the
appellant as witness in support of her case will not be of any
disadvantage to her particularly in view of the fact that R.Ws.1
and 2 have fully supported the case of the appellant, giving proper
justification for her “reasonable excuse” in withdrawing from the
society of her husband (respondent herein). Moreover, as
discussed hereinabove, a wife cannot be compelled to stay with
her husband or her in-laws under adverse circumstances.
21. In view of the aforesaid facts and circumstance of the case and
the judicial pronouncements discussed hereinabove, we are of the
considered view that the impugned judgment and decree suffers
from serious infirmity in law and as such, the same cannot be
sustained. Accordingly, the impugned judgment dated
23.09.2011, decree signed on 14.10.2011, passed by Sri Satish
Chandra Singh, learned Principal Judge, Family Court, Jamshedpur
in connection with Matrimonial Suit No. 121 of 2008 is not
sustainable and the same is, accordingly, set aside.
22. Resultantly, the instant first appeal stands allowed.
(Shree Chandrashekhar, J.)
(Rajesh Shankar, J.)
Jharkhand High Court,
Ranchi
Dated, the 16th December, 2016
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