The burden of proof lies on the petitioner in an action for restitution of conjugal rights to establish that the other party has withdrawn from the society without reasonable excuse. The court has discretion to refuse the prayer for restitution of conjugal rights if it finds a reasonable excuse for the withdrawal.

1. These are connected appeals which are filed from the common order passed by the learned District judge, Ernakulam dated 31-7-1986. The appeals are filed by the wife the respondent in O.P (Divorce) No. 253 of 1985 and the petitioner in O.P. (Divorce) No. 293 of 1985. The common respondent in these appeals is the husband of the appellant. They were married at the St. George Church, Kaninadu on 28-10-1979. They lived together as husband and wife till 25-3-1980. The parties are Christians. The husband alleged that the wife left his house on 25-3-1980 and thereafter never returned despite several requests therefor. He sent registered letters requesting the wife to come and stay with him. It was not acceded to. He. thereupon, filed O.P. (Divorce) No. 253 of 1985 for restitution of conjugal rights. The said petition was contested by the appellant herein (wife). She stated that the behavioural pattern of her husband towards her was harsh and cruel. Stating that she was treated with cruelty and that she is seeking a decree for judicial separation, various aspects of the conduct and behaviour of her husband which include a few incidents to the effect that she was beaten and manhandled by her husband, were highlighted in the objections. She resisted the prayer for restitution of conjugal rights sought by her husband on the ground that the husband was behaving cruelly towards her and so in the circumstances it is not possible to reside, with him. On the same day, when the appellant herein (wife) entered defence in the petition filed by her husband (O.P. No. 253 of 1985), she filed O.P. 293 of 1985 seeking a decree for judicial separation against her husband. The petition filed by the husband was one under S.32 and 33 f the Indian Divorce Act. The petition filed by the wife was one under S.22 and 23 of the Indian Divorce Act, on. the very same allegations set forth in her defence or counter to the petition filed by the husband (O.P. No. 253 of 1985).

2. Both the petitions were tried together. O.P. No. 293 of 1985 was treated as the main proceeding wherein evidence was recorded. The learned District judge, after an elaborate consideration of the evidence, came to the conclusion that the wife (Appellant) failed to establish that she has been treated cruelly by her husband in order to enable her to claim a decree for judicial separation or successfully resist the claim made by the husband for a decree for restitution of conjugal rights. In this view, the petition filed by her, O.P. No. 293 of 1985, was dismissed. The petition filed by the husband (O.P. No. 253 of 1985) was allowed. A decree against the appellant herein (wife) for restitution of conjugal rights was passed. Aggrieved by the common order passed by the learned District judge dated 31-7-1986, the respondent in O.P. No. 253 of 1985 and the petitioner in O. P. No. 293 of 1985 (wife) has come up in appeals.

3. We heard counsel for the appellant, Mr. M.R. Parameswaran, as also counsel for the common respondent, Mr. P. George William. The entire evidence in the case was read over to us. An array of authorities decided under the analogous provision of the Hindu Marriage Act (S. 9 before the amendment in 1976) as also the relevant provisions in the Indian Divorce Act were placed before us. In order to appreciate the question posed before us for consideration, it will be useful to extract S.22 and 23 of the Indian Divorce Act, 1869 which deals with judicial separation, as also S.32 and 33 of the Indian Divorce Act which deals with "restitution of conjugal rights."

"22. Bar to decree for divorce a mensa et toro but judicial separation obtainable by husband or wife. No decree shall hereafter be made a divorce a mensa et toro but the husband or wife may obtain a decree of judicial separation on the ground of adultery or cruelty or desertion without reasonable excuse for two years or upwards and such decree shall have the effect of a divorce a mensa et toro under the existing law