A decree under Section 9 of the Hindu Marriage Act, 1955 cannot be granted solely based on a party's statement and requires pleading and proof by evidence.

Pratibha Rani, J.

CM No.6875 of 2015

1. For the reasons stated in the application 253 days’ delay in filing the appeal is condoned.

2. Application is disposed of.

MAT.APP.(F.C.) 43 of 2015

1. The appellant/husband is aggrieved by the order dated July 01, 2014 whereby the petition filed by the respondent/wife under Section 9 of Hindu Marriage Act, 1955 for restitution of conjugal rights has been allowed by the learned Principal Judge, Family Court after examining the parties under Order X CPC.

2. Perusal of the impugned order shows that on July 01, 2014, learned Principal Judge, Family Court passed a decree of restitution of conjugal rights only on the basis of statement of the parties recorded on May 22, 2014.

3. The statement made by the appellant/husband before the learned Principal Judge, Family Court is following effect:-

‘I am the respondent in the present case and I do not wish to stay with respondent (sic. Petitioner) and I have also filed a divorce petition.’

4. The respondent/wife has made the following statement before the learned Principal Judge, Family Court:-

‘I am petitioner in the present case and I wish to stay with my husband and he has withdrawn from my society without any justifiable cause.’

5. On April 17, 2015 while staying the operation of impugned order this Court made the following observation:-

‘..........Assailing the legality and correctness of the impugned order, the learned counsel for the appellant submits that just on an one line statement of the appellant recorded under Section 10 of the Code of Civil Procedure, the learned Principal Judge, Family Courts, Saket has passed a decree of restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 in favour of the respondent.

Heard on the application for seeking stay of the impugned judgment as well as for condonation of delay.

We find considerable force in the contention raised by the learned counsel for the appellant. The respondent had filed a petition under Section 9 of the Hindu Marriage Act, 1955 seeking restitution of conjugal rights. In the said petition, the learned Principal Judge, Family Courts has recorded the statement of both the parties under Section 10 of the Code of Civil Procedure. The respondent in her statement stated that she wishes to stay with her husband and that her husband had withdrawn himself from her society, without any justifiable cause. The appellant – husband in his statement stated that the respondent does not wish to stay with him and therefore he has already filed a divorce petition.

Taking into consideration the aforesaid one line statement made by the appellant, the learned Principal Judge, Family Courts felt satisfied that his said statement clearly indicates that the appellant has withdrawn from the society of his wife and as such the respondent – wife is entitled to a decree of restitution of conjugal rights. We are quite disgusted to see the reasoning given by the Presiding Judge, who is a Principal Judge of South District, Family Courts, Saket Courts Complex, New Delhi. We fail to comprehend as to how the learned Presiding Judge could feel satisfied on such a bald statement made by the appellant that he has withdrawn from the society of the respondent. Any party seeking a decree under Section 9 of the Hindu Marriage Act, 1955, has to plead and prove by evidence that the other spouse has withdrawn from his/her society without reasonable excuse and the Court on being satisfied of the veracity of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly. Section 9 further provides that where a question arises whether there has been a reasonable excuse for withdrawal from the society of another, the burden of proving the same shall lie with the person who has withdrawn from the society of the other. Shockingly, there was no evidence on record either proved by the appellant or by the respon