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IN THE HIGH COURT OF CALCUTTA
Girish Chandra Gupta, Mir Dara Sheko, JJ.
Rakesh Kumar Das - Appellant
Versus
Kakali Mazumdar - Respondent
F.M.A. No. 006 of 2015
Decided On : 28-9-2015
Advocate Appeared:
For the Appellant :Ajay Kumar Mandal, Advocate
For the Respondent:Krishna Rao, Advocate
The burden of proving reasonable excuse for withdrawal from society lies on the person who has withdrawn, as per the Explanation to Section 9 of the Hindu Marriage Act.
Headnote:
RESTITUTION OF CONJUGAL RIGHTS - HINDU MARRIAGE ACT, 1955 - SECTION 9 - WITHDRAWAL FROM SOCIETY - REASONABLE EXCUSE - BURDEN OF PROOF - PRESUMPTION UNDER SECTION 114(G) OF EVIDENCE ACT - APPLICABILITY - INTERPRETATION AND APPLICATION OF SECTION 9 OF THE HINDU MARRIAGE ACT AND SECTION 114(G) OF THE EVIDENCE ACT - HELD, RESPONDENT FAILED TO DISCHARGE BURDEN OF PROVING REASONABLE EXCUSE FOR WITHDRAWAL FROM SOCIETY - DECREE FOR RESTITUTION OF CONJUGAL RIGHTS GRANTED.
Fact of the Case:
Husband filed a petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, alleging that the wife had withdrawn from his society without reasonable excuse. The wife defended the suit, alleging ill-treatment by the husband's mother and sister-in-law. The trial court dismissed the suit, holding that the husband had failed to prove his case and that the wife had not been given an opportunity to cross-examine the husband's parents.
Finding of the Court:
The High Court held that the wife had not denied the fact of her withdrawal from the society of her husband and that she had failed to discharge the burden of proving reasonable excuse for such withdrawal. The Court also held that the trial court had erred in applying the presumption under Section 114(G) of the Evidence Act, as the husband had already established a prima facie case of withdrawal without reasonable excuse.
Issues: 1. Whether the wife had withdrawn from the society of her husband without reasonable excuse. 2. Whether the burden of proving reasonable excuse for withdrawal from society lay on the wife. 3. Whether the trial court erred in applying the presumption under Section 114(G) of the Evidence Act.
Ratio Decidendi: 1. The burden of proving reasonable excuse for withdrawal from society lies on the person who has withdrawn, as per the Explanation to Section 9 of the Hindu Marriage Act. 2. The trial court erred in applying the presumption under Section 114(G) of the Evidence Act, as the husband had already established a prima facie case of withdrawal without reasonable excuse. 3. The wife failed to discharge the burden of proving reasonable excuse for her withdrawal from the society of her husband.
Final Decision: The High Court set aside the decree of the trial court and granted a decree for restitution of conjugal rights in favor of the husband.
Mir Dara Sheko, J.
The subject matter of challenge in the appeal is a judgment and decree dated 27th August, 2014 by which an application under section 9 of the Hindu Marriage Act registered as Matrimonial Suit No. 85 of 2011 was dismissed on contest without any order as to costs. Aggrieved by the order of dismissal the petitioner has come up in appeal. Briefly stated the fact and circumstances of the case are as follows:
Both the parties to the suit are residents of Port Blair. The petitioner is a Government servant aged about 32 years. The respondent is a B.Sc. in Biotechnology. They were married as per Hindu Rites and Customs on 7th February, 2011. The Bohu Bhat ceremony took place on 10th February, 2011. The marriage was duly consummated.
2. The petitioner is the only son of his parents. The respondent is the only daughter of her parents. Shortly after the marriage the respondent started complaining about the behaviour of the mother-in-law and the sister-in-law. The sister-in-law is a married woman. Her husband at the relevant point of time was posted at Assam. She as such was living with her parents. During the period between 14th February, 2011 and 25th February, 2011 the respondent insisted upon looking after the business of her uncle (mother's sister's husband) carried on under the name and style of Kalapani Tours and Travels. The father-in-law was initially hesitant, but he ultimately permitted her to do so. Though it is alleged that the mother-in-law was not inclined to allow her to do so. On 20th March, 2011, she returned to her paternal house and did not come back. The defence of the respondent is confession and avoidance. She admits that she has been residing at her paternal house since 20th March, 2011, but she tried to justify her conduct by alleging ill-behaviour of the mother-in-law and the sister-in-law. Both the parties have alleged that there were attempts for reconciliation. The petitioner alleged that attempts of reconciliation failed because the respondent was not inclined to reside at her matrimonial home with the parents of her husband. Whereas the respondent has alleged that her father tried to bring about a reconciliation which failed due to obstinacy of the parents of the petitioner.
3. It is not in dispute that the respondent left Port Blair for Chennai on 16th October 2011. According to the petitioner he was not informed about such visit. Case of the respondent is that she went Chennai for her mother's treatment with the consent of the petitioner.
4. Case of the petitioner is that the respondent was treated with utmost love and affection both by the petitioner and his parents, whereas the case of the respondent is that her mother-in-law treated the former like a maidservant and pressurised her to sweep the house seven to eight times per day and would also ask her to wash all the utensils. She has also alleged that the mother-in-law did not allow her access to her wardrobe and she would not allow to close the doors of her bedroom while the couple were going to sleep.
5. On the basis of the aforesaid pleadings the learned Trial Judge framed the following issues:-
"Issues
1. Whether the instant suit is maintainable in present form?
2. Whether the Respondent has withdrawn from the society of the Petitioner without reasonable excuse?
3. Whether the Petitioner caused the Respondent to leave matrimonial home?
4. Whether the Petitioner is entitled to get relief as prayed for?"
6. The petitioner in his examination-in-chief adduced by an affidavit has reiterated his case and has also denied the allegation made by the respondent in her written statement, briefly indicated above, justifying her withdrawal from the society of her husband. During his cross-examination it was suggested that his mother and sister jointly tortured the respondent, which he denied. The petitioner was also suggested that his mother had restrained the respondent to use her wardrobe by locking the same, which the petitioner denied. The p
