The burden of proof in an application for restitution of conjugal rights lies on the petitioner to establish that the other spouse has withdrawn from their society without reasonable excuse, and the defenses available to a respondent are not limited to those specified in sections 10, 12, and 13 of the Hindu Marriage Act, 1955. The court must consider all relevant factors, including the conduct of the petitioner, in determining whether to grant a decree for restitution of conjugal rights.

( 1 ) THE appellant in both these appeals is the wife of the respondent against whom a decree for restitution of conjugal rights has been passed by Shri Sagar Chand Jain, Subordinate Judge 1st Class, Delhi on an application filed by her husband under section 9 of the Hindu Marriage Act, 1955. By the same order the wife s application for judicial separation under section 10 of the Act has been dismissed. The appellant being aggrieved by the order made by the learned Subordinate Judge has filed two separate appeals, one against the decree for restitution of conjugal rights passed against her and other against the dismissal of her application for judicial separation. Although two separate decrees have been framed by the trial court a. nd also two separate appeals have been filed against them, the order in both the cases being common, both the appeals have been heard together.

( 2 ) THE parties are Hindus by religion and were married at village Kerala, Delhi in the year 1958 in accordance with Hindu rites. They lived together for a few months only and thereafter according to the allegations of the husband, who will hereafter be REFERRED TO as I respondent, the wife who will hereafter be REFERRED TO as appellant was taken away by her brother Khazan and has since then deserted the respondent. The appellant s allegations were that she lived with the respondent at his house for about 8 or 9 months after their marriage and thereafter she was turned out of the house after having been beaten by him. The trial court has disbelieved the defence set up by the appellant and has held that her allegations of cruelty and desertion have not been proved, nor has the allegation of respondent having deserted her been established. Learned Subordinate Judge has also held that it is a fundamental principle of matrimonial law that one spouse is entitled to the society and comfort of the other and if therefore one spouse abandons the other without reasonable cause, the other spouse can obtain a decree for restitution of conjugal rights. Having hold that the respondent was entitled to succeed in the application filed by him, the learned subordinate Judge decided that the appellant s application for judicial separation had to be dismissed.

( 3 ) AT the hearing of the appeals learned counsel for the appellant placed in the fore-front of his argument the point that the entire approach of the trial court to the question arising for decision in the respondent s application for restitution of conjugal rights was wrong. The case had been decided by the trial court as if the burden of approving the negative was on the appellant. Instead of placing the burden of proof on the respondent which, according to the learned counsel, the court was bond to do in an application for restitution of conjugal rights, the onus instead had been placed on the appellant to prove want of reasonable excuse. In support of his argument, the learned counsel drew my attention to the issues framed by the trial court which read : -

1. Whether the respondent has treated the petitioner with such cruelty as to raise a reasonable apprehension in her mind that it would be harmful or injurious for her to live with him ? OP 2. Whether the respondent has deserted the petitioner for a continuous period of not less than two years immediately preceding the representation of this petition ? 3. Relief. The contention urged by the learned counsel is that in an application under section 9 of the Act the husband is entitled to succeed on the strength of his own case and not on the weakness of the defence set up by the wife. In support of his argument, reliance is placed on a Bench decision of Calcutta High Court in Smt. Rebarani Sen Gupta v. Ashit Sen Gupta. The contention urged by the learned counsel has a great deal of force. An examination of the provisions of section 9 of the Act shows that under sub-section (1), it is the duty of the petitioner to establish that the other spouse has wit