The court held that the husband had been able to establish that the wife was guilty of adultery and that she had conceived from a person other than him. The court further held that there was reasonable cause for the husband to withdraw from the society of the wife.

1. - This is a wife's appeal against the judgment of the learned District Judge, Bhilwara, dated 30-4-82 by which her application under section 9 of the Hindu Marriage Act (hereinafter referred to as the to as the 'Act;) has been dismissed.

2. Briefly stated the facts of the case are that the parties were married according to the Hindu rites & customs at Bhilwara in May, 1974. Thereafter they lived together at Ajmer. The petitioner gave birth to a son, who was about 31/2 years old on the date to the petition i. e. 23-3-81. The case of the petitioner is that after the birth of that son, the non-petitioner Sitaram left the petitioner at her father's house at Bhilwara and thereafter never took her back or called her back and has thus withdrawn from her society without any reasonable excuse. Her case further was that she and her relations had requested the non-petitioner to take her back but he did not care. She, therefore, prayed for a decree for restitution of Conjugal rights. The application was contested by the non-petitioner Sita Ram on the ground that the son was conceived by the petitioner Laxmi Devi from a person other than the non-petitioner Sita Ram and that Smt. Laxmi Devi was guilty of adultery and, therefore, he had sent her away to her father's house and did not want to take her back. The non-petitioner had stated further in the additional pleas that it was on 6-1-76 that the non-petitioner had gone to Bhilwara with her brother and thereafter she returned to Ajmer on 15-8-76, and during all this time, the non-petitioner did not have any sexual-intercourse with the petitioner. However, within six months of her coming back to Ajmer on 15-8-76. She delivered a son. After framing the necessary issues and taking the evidence of the parties, the learned District Judge was of the view that the non-petitioner had been able to establish that the petitioner was guilty of adultery and that she had conceived from a person other than the non-petitioner and, therefore, there was reason- able cause for the non-petitioner to withdraw from the society of the petitioner. He, therefore dismissed the petitioner's application under section 9 of the Act. The petitioner has, therefore, come up in appeal.

3. I have heard the learned Counsel for the appellant. The respondent has not cared to appear despite service of notice.

4. The learned counsel for the appellant strenuously urged that the learned District Judge was wrong in holding that the petitioner-appellant appeared to have conceived from a person other than the non-petitioner and on that count in holding that there was sufficient cause for the non-petitioner to withdraw from her society. He urged that even under section 112 of the Evidence Act, there was a presumption of legitimacy of the child in the circumstances of this case and that presumption cannot to said to have been rebutted. I have given my careful consideration to these contentions. It may at once be stated that section 9 of the Act has undergone a very significant chance inasmuch as by Marriage Laws (Amendment) Act, 1976, sub- Sec. (2) of section 9 has been omitted. This sub-section (2) which provided "Nothing shall be pleaded in answer to a petition for restitution of conjugal right s which shall not be a ground for divorce". This omission of sub- section (2) of Section 9 is not without purpose or significance. The rigour of sub-section (2) has been done away with and now it is permissible for the party resisting restitution of conjugal rights to satisfy the court that restitution should not be granted on grounds, which may otherwise be reason- able though they may not satisfy the test prescribed by the existing sub- section (2) of section 9. The burden to prove that there has been reasonable excuse for withdrawal from the society has now been placed upon the party withdrawing from the society by adding an explanation to section 9. Therefore, now as section 9 stands, it is only to be seen whether in the facts and