Heard both sides. The facts involved in this case is that the revision petitioner herein has filed O.P. No. 600 of 2001 on the file of Principal Judge, Family Court, Chennai against the respondent herein for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, hereinafter referred to as Act. The respondent herein has filed counter claim under Section 23-A of the Hindu Marriage Act in I.A. No. 228 of 2007 for the relief of dissolution of marriage. The petitioner had raised a preliminary issue that the respondent, as a deserted spouse should begin the case. The court below passed an order dated 05.09.2007 directing the petitioner herein to begin the case, hence, the present civil revision petition.

2. Mr. Sundarrajan, learned counsel appearing for the petitioner submitted as follows:-

On 17.06.2000, the respondent left the matrimonial house without intimation and during her stay in her parents house, she delivered a female child on 07.01.2001. After the respondent left the matrimonial house, the petitioner and his parents requested her to come back but she refused without any valid reasons. Even the panchayats arranged not yielded any result since the respondent was influenced by the ill advise of her parents. The act of the respondent in withdrawing from the petitioners society without any reasonable excuse has caused serious matrimonial loss of discomfort and consortium of the child, hence, the petitioner was forced to file a petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act. Section 9 of the Act clarifies that burden of proving reasonable cause for withdrawing from the society shall be on the person who withdrawn from the society of the other, while so, directing the petitioner to begin the evidence is unsustainable in law. When the Petition is filed for restitution of conjugal rights and the respondent/wife pleads ill-treatment and cruelty, she should be called upon to begin the evidence first. In the instant case, the respondent not only resisted the conjugal rights sought for by the petitioner but also seeks counter-claim for dissolution in the same proceedings. As per Order 18 Rule 1 CPC and under Sections 101 to 104 of Evidence Act, she should have been called upon to begin the evidence. The decision relied on by the respondent reported in Jyothi Pais case (AIR 1987 Karnataka 24) cannot be made applicable. The court below failed to note the difference between burden of proof and onus of proof. In support of this contention, the learned counsel for the petitioner relied on the below mentioned decisions:-

i) (M/s. Keshavlal Durlabhasinbhais Firm and another vs. Shri Jalaram Pulse Mills) AIR 1995 Gujarat 166 wherein a learned single Judge of the Gujarat High Court held in Para-9 thus:-

“9. In the present case, though this procedure is not followed and though the stage of framing of issues has passed, the trial court has on correct appreciation of the rival contentions of the parties come to a proper conclusion that the defendant should lead the evidence first. This order is perfectly legal and proper and no interference is called for on any of the grounds canvassed by the learned advocate for the petitioner. Though the defendant has chosen to deny the claim of the plaintiff in totality, that is a denial without any substance in view of the other admitted facts of receipt of goods, part payments, issuance of cheques and a claim of having made further payments and, therefore, onus lies on the defendant. The denial of registration of partnership is also prima facie frivolous. The plaintiff has given the registration number of the partnership firm of the plaintiff.”

ii) (Ram Narain Prasad vs. Seth Sao) AIR 1979 Patna 174, wherein in Para Nos. 4, 5 and 7, it was held thus:-

“4. On a perusal of the above mentioned paragraph in the written statement, it is clear that the case of the defendant was that he had paid the electric charges for the period in question (betw