The burden of proof for withdrawal from the society of the other spouse lies on the party who has withdrawn, as per Section 9 of the Hindu Marriage Act. In a claim for divorce, the burden of proof for establishing grounds such as desertion or cruelty lies on the petitioner.

Harinath Tilhari, J.—This appeal under Section 28 of the Hindu Marriage Act, 1955, arises from the judgment and decree dated 20.10.1994 passed in M.C. No. 20 of 1987 whereby the Principal Civil Judge, Tumkur, granted the decree for restitution of conjugal rights in favour of the present Respondent (Petitioner before the Trial Court) and dismissed the counter claim made by the wife the present Appellant seeking decree for divorce.

2. The facts of the case in nut shell are that the Petitioner i.e. the present Respondent and the Appellant were married in accordance with the Hindu customs and rites sometimes in May 1984. According to the case of the husband-Petitioner who filed a petition under Section 9 of the Hindu Marriage Act, Smt. T.V. Nagarathnamma the wife who is the Appellant before us and who is referred to as the Appellant lived as a dutiful wife for a period of one month and thereafter the Appellant went to her parents house at Tumkur along with her parents and while going so she stated that she would join the present Respondent as early as possible. Thereafter, when she did not come, the Petitioner-Respondent approached the wife-Appellant and her parents to send the Appellant i.e., wife to live with the Respondent-husband. He also made a request to the wife but it was futile and the wife refused to come to Pura Mutt village to live with the present Respondent-husband. According to the husband-Petitioner, she acted on the ill-advise of her parents and she later on put a force on the husband to ask for partition of the Immovable properties belonging to the husband's family and to sell his share therein and thereafter to establish a house at Tumkur by the money obtained by the sale of the property. The case of the husband-Petitioner is that he requested the wife from time to time to join him and live with him. But she did not agree and the request of the Petitioner to the wife i.e. the present Appellant to join the husband made times again, as well as and the Panchayat held in this respect became futile and she did not agree to come to the house of the husband and deserted for no reason and refused to live with in the husband's house at Pura Mutt village. According to the husband-Petitioner who is the Respondent before us, the Petitioner issued the notice on August 24, 1987 to wife i.e. Appellant asking her to live with him and perform marital obligations, but Appellant (wife) gave an evasive reply hereto and did not comply with the request contained in the notice. The reply and the acknowledgment were also produced. Feeling aggrieved from the conduct of the present Appellant-wife who has been Respondent before Trial Court the Petitioner-husband filed the petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act on the plea that the wife has deserted the husband without any rhyme or reason and without his consent.

That summons having been served on her the wife, who was the Respondent before the Trial Court and Appellant before us filed the written statement denying the allegations made in the petition and the case of the Petitioner-husband i.e. Respondent before us, she asserted that she has not deserted the husband. She asserted that it is false to say that the present Appellant i.e. wife lived at village Pura Mutt with Respondent up to 25.6.1984 for a month. According to her case, after the marriage when she had gone to the house of husband i.e. the present Respondent, she lived there as customary for two days and thereafter she had gone to her parents house and thereafter the Petitioner i.e. the present Respondent came to the house of the wife i.e. present Appellant and lived with the parents of the present Appellant. According to the case of the Defendant the husband came to the house of the wife and lived with the wife the present Appellant and her parents till August 1985. In addition to denying of the Petitioner's case the wife i.e. present Appellant also made a counter claim seek