JUDGMENT - 1. The opponent had filed a petition in the Lower Court under Section 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of the Hindu Marriage Act for restitution of conjugal rights alleging that the applicant had without reasonable excuse withdrawn from the society of the opponent.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"Whether the petitioner proves that the respondent has withdrawn from the society of the petitioner without reasonable excuse".

The parties went to trial on this issue and the case was fixed for evidence on 20-12-1967. 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 ?"

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 fac

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