The burden of proving the factum of marriage is essential for a decree of restitution of conjugal rights.

Prabha Sridevan, J.

The wife is the appellant, aggrieved by the judgment and decree for restitution of conjugal rights granted in favour of the respondent. The facts of the case are stated hereunder.

2. The respondent claimed that he had married the appellant on 2.3.1997 at Door No.9, Muthukumaraswamy Street, Perambur, Chennai-11. The marriage was performed in accordance with Section 7-A of the Hindu Marriage Act, 1955. Even before the marriage, the two were in love and the marriage was consummated. The appellant obtained a seat in B.E. Course and till her marriage, her parents were meeting her educational expenses. But, after her marriage, it was only the respondent who paid for the appellants education. During June 1997, the appellant became pregnant, but that pregnancy was terminated. There was a regular letter correspondence between the respondent and the appellant till the end of 1998. Thereafter, the appellant stopped writing. She did not even care to reply to the respondents letters. She avoided meeting him and withdrew from the society of the respondent. The respondent sent a lawyers notice, for which there was no positive response from the appellant and therefore, he was compelled to file the suit.

3. The appellant, in her counter, denied the marriage. She denied that there was any tying of Thali or of exchange of rings. She denied all the averments in the petition, including the termination of pregnancy. She has only admitted that there was exchange of letters since she had fallen in love with the respondent, but subsequently, since the respondents character had changed and for other reasons, she discontinued her contact with him. She has stated that it was the respondent who pressurized her to marry him and therefore, the appellant prayed that the petition filed by the respondent for restitution of conjugal rights be dismissed.

4. The Second Additional Principal Judge, Family Court, framed the following questions for consideration:-

(i) Whether the petitioner married the respondent on 2.3.1997 at Chennai according to Section 7-A of the Hindu Marriage Act?

(ii) Whether the appellant is entitled to the relief of restitution of conjugal rights?

(iii) To what relief?

Thereafter, the learned trial Judge came to the conclusion that the respondent had married the appellant on 2.3.1997 and that the appellant had withdrawn herself from the society of the respondent without reasonable cause and therefore, the respondent was entitled to the relief of restitution of conjugal rights. Against that, the present appeal has been filed.

5. Learned counsel for the appellant would submit that the specific case of the respondent is that he married the appellant on 2.3.1997 and that the marriage was performed in accordance with Section 7-A of the Hindu Marriage Act. Learned counsel submitted that though the trial court had believed the evidence of P.Ws.1 to 4 for accepting the case of marriage, the documents produced, which are private and personal letters written by the respondent himself to the appellant, would show that the marriage had not taken place on 2.3.1997 and if so, the marriage between the parties remains unproved and therefore, the petition for restitution of conjugal rights is not maintainable. Learned counsel submitted that even if they had had an intimate relationship with each other, which resulted in the appellant becoming pregnant, that would not automatically give rise to a presumption that there was a marriage. Learned counsel submitted that all the witnesses who had spoken of a ceremony like that were interested witnesses, being the respondents friends. Learned counsel submitted that the appellant had produced two certificates from her college to the effect that she was inside the college hostel on 2.3.1997 and therefore, the respondent had come to court with a false case. Learned counsel read the various portions of the exhibits to show that there was no marriage.

6. Learned counsel for the respondent woul