The burden of proving the existence of justification or reasonable excuse for withdrawal from conjugal society lies on the withdrawing spouse, as per the explanation to Section 9 of the Hindu Marriage Act.

( 1 ) THE instant appeal is directed against a decree of dismissal, passed in a matrimonial suit, arising out of application under S. 9 of the Hindu Marriage Act, for a decree of restitution of conjugal rights, instituted by the husband against the wife.

( 2 ) THE admitted facts are that the marriage was on 13-5-82, though registered on 15-5-82. The wife left the matrimonial home on 26-4-83.

( 3 ) IT was pleaded on behalf of the petitioner husband that his sister was married to the brother of the wife, their matrimonial life was not happy and ultimately the said sister was driven out of her matrimonial home. She started residing with the husband / petitioner. Protest against cruelty of sister by the wife's family members enraged the wife; the wife started to ill-treat the petitioner and ultimately left the house on 26-4-1983, as stated.

( 4 ) WIFE's defence was that the petitioner's sister, after leaving her matrimonial home and after coming back to her brother's house, instigated the petitioner to inflict physical and mental torture on the wife/respondent for trifles; the wife, occasionally, was beaten up and abused along with her parents and brother; she had marks of injuries; the wife was used to be locked up by the husband, when the husband attended his office; on 26/04/1983 after forcibly taking away the ornaments, the wife was driven out of the house; on wife's attempt to go back to the matrimonial home, on 23/07/1983, she was threatened with death and thereafter, lodging diaries, she had to go back.

( 5 ) THE impugned judgment dated 17-9-1988, contains the following findings:- (I) Since both the parties adduced evidence, question of onus on the wife to show that she withdrew from the company of the husband on justifiable grounds was not of much importance. (II) The case pleaded on behalf of the husband about ill-treatment meted out to him by the wife on his protest against cruelty and torture imposed on his sister was given up by introducing story of non-payment of dowry in the marriage of the sister and consequent ill-treatment, assault and pressurisation of the petitioner by the wife for payment of such dowry, culminating with the withdrawal of company by the wife. Such evidence did not deserve consideration because of variance with pleadings. (III) Ground required to be made out for getting an order under S. 9 of the Hindu Marriage Act did not exist. (IV) Plaintiff's witnesses were disbelieved on shifting of their evidence. (V) Non-production of any witness from the locality where the husband resided was believed upon acceptance of a statement of the wife that she was not allowed to mix with neighbours. (VI) The incident on 23-7-1983 was disbelieved against the petitioner. (VII) GD entries were accepted as true.

( 6 ) SECTION 9 of the Hindu Marriage Act requires establishment of two conditions for passing an order, in favour of an applicant namely, (a) whether there has been a withdrawal by the other party from the society of the applicant and, secondly, (b) whether such withdrawal is justified in the facts and circumstances of the case. By the explanation added to the section, the burden of proving existence of justification or reasonable excuse has been placed on the person against whom, the allegation of withdrawal is made. In other words, a careful reading of the section unequivocally indicates that once the factum of withdrawal from society by one of the spouses is proved, the reasonableness of the withdrawal has to be proved by the withdrawing spouse. It is needless to point out that society would mean conjugal society.

( 7 ) IN the instant case, admittedly the wife withdrew from the matrimonial home on 26/04/1983. In terms of the explanation, therefore, the onus to show that there was reasonable excuse for such withdrawal from society, lay on the wife, who started residing in her paternal house. Mr. Guha, appearing in support of the appeal, has strenuously argued that this burden wa