In a suit for restitution of conjugal rights, the burden of proving the marriage lies on the petitioner. However, where both parties have adduced their respective evidences, the question of onus of proof becomes academic.

( 1 ) THIS First Appeal is directed against the judgment and decree dated 28th September, 1989 passed by Sri R. N. Kali, 2nd Additional District Judge, Alipore, in M. S. No. 93 of 1985, whereby and whereunder the learned Court below allowed the application filed by the plaintiff-respondent under section 9 of the Hindu Marriage Act, 1955 (the Act for short) for restitution of conjugal rights.

( 2 ) THE fact of the matter lies in a very narrow compass : the husband-appellant allegedly married the plaintiff-respondent in Asar 1361 B. S. according to the Hindu rites at village Simuliapara, P. O. Chandpara Bazar, P. S. Gaighata, in the District of 24 Parganas. Out of the said wed-lock a daughter, namely, Shanti Saha was born in May, 1956. In the year 1957, the appellant allegedly left the matrimonial home. It is alleged that the appellant used to send money to the respondent by Money Order. However, from July, 1958, the appellant stopped paying maintenance to the respondent, and, therefore, she had to leave the matrimonial home, and came to live with her father.

( 3 ) IN the year 1964, the appellant came to the respondent's house and brought her along with her daughter to the premises at 128/2, Beliaghata Main Road, P. S. Beliaghata, Calcutta-10 and began to reside there with the respondent. According to the plaintiff-respondent, the appellant used to remain absent from home for days together and upon quarry made in that regard, he used to answer that he had to remain busy in performing official duties. Allegedly owing to the aforesaid conduct of the appellant, a serious mistrust between the parties used to take place.

( 4 ) ON or about 4. 3. 1980, the appellant deserted the respondent and since then the respondent had been residing in the aforesaid premises at Beliaghata with her daughter. In the year 1982, however, allegedly after diligent search, the respondent came to know of the whereabouts of the appellant and requested him to come back, but the same was turned down. It is alleged that the appellant married for the second time with one Smt. Krishna Saha and out of the said illegal wedlock, one son, namely, Subir and one daughter, namely, Sima Saha were born.

( 5 ) THE appellant filed his written statement in the Court below denying and disputing the marriage between himself and the respondent. He has further denied and disputed that Santi Saha was his daughter. The appellant also denied and disputed the fact that he had ever made any correspondence with the respondent or had been sending money to her. The appellant further denied that he ever brought back the respondent and her daughter and had been living at the premises at Beliaghata Main Road, aforesaid.

( 6 ) THE learned Court below in view of the aforesaid pleadings of the parties framed the following issues :"1. Is the suit maintainable as framed ? 2. Has the Court jurisdiction to entertain the suit ? 3. Is the petitioner a married wife of the respondent as claimed ? 4. Has the respondent deserted the petitioner as alleged ? 5. Is Shanti Saha a daughter born out of the wed-lock between the petitioner and the respondent as claimed? 6. Is the petitioner entitled to get a decree for restitution of conjugal rights as prayed for? 7. To what relief/reliefs is the petitioner entitled?"

( 7 ) UPON considering the materials on records the trial Court decreed the plaintiffs suit.

( 8 ) MR. Roy Chowdhury, learned counsel appearing for the respondent-appellant, raised two contentions in support of his case. He submitted that from perusal of the judgment of the Court below it would appear that the respondent had failed to prove any ceremony to prove a valid marriage, and thus no presumption that the appellant and the respondent were married can be drawn. In any event, it was submitted that as the plaintiff-respondent failed to prove the performance of essential ceremonies required for a valid marriage the marriage must be held to be invalid in law.

( 9 ) LEAR