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1990 Supreme(MP) 179
B.N. Lal, J.
Dasoda Devi @ Gendarani
vs
Chunna
DECIDED ON : 30 March, 1990
The burden of proof is on the wife to establish reasonable excuse for her withdrawal from the society of her husband, and that she had not discharged this burden.
Headnote:
HINDU MARRIAGE ACT, 1955 - SECTION 9 - RESTITUTION OF CONJUGAL RIGHTS - WIFE'S APPEAL AGAINST DECREE - ALLEGATION OF CRUELTY AND APPREHENSION OF DANGER TO LIFE - BURDEN OF PROOF - EXPLANATION TO SECTION 9 - CONDUCT OF SPOUSES - RELEVANT CONSIDERATION.
Fact of the Case:
Wife appealed against a decree for restitution of conjugal rights granted to her husband under Section 9 of the Hindu Marriage Act, 1955. She alleged cruelty and apprehension of danger to her life as reasons for not returning to her marital home.
Finding of the Court:
The court found that the wife failed to prove her allegations of cruelty and apprehension of danger to her life. It held that the burden of proof was on the wife to establish reasonable excuse for her withdrawal from the society of her husband, and that she had not discharged this burden.
Issues: 1. Whether the wife had proved her allegations of cruelty and apprehension of danger to her life as reasons for not returning to her marital home. 2. Whether the wife had discharged the burden of proof to establish reasonable excuse for her withdrawal from the society of her husband.
Ratio Decidendi: 1. The court held that the wife's evidence was insufficient to prove her allegations of cruelty and apprehension of danger to her life. 2. The court held that the wife had not discharged the burden of proof to establish reasonable excuse for her withdrawal from the society of her husband.
Final Decision: The court dismissed the wife's appeal and upheld the decree for restitution of conjugal rights granted to her husband.
B.N. Lal, J.
1. This is wife's first appeal under Section 28 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act), against the Judgment & Decree dated 25.1.1986, whereby the learned District Judge, Damoh passed decree for restitution of conjugal rights under Section 9 of the Act in favour of the Respondent/husband.
2. The short facts leading to this appeal are as under :
The respondent brought an action against the appellant/wife claiming decree for restitution of conjugal rights under Section 9 of the Act. According to the plaint averments, marriage between the spouses was solemnized in the year 1974 in village Khamaria Tehsil Hata, District Damoh according to the Hindu customs and rituals prevailent amongst the Kachchi caste of Damoh district. The parties consumated their marriage by cohabiting in village Ronda, for about 8 years. However, in the month of June, 1982, the appellant deserted the respondent and did not return to village Ronda despite several attempts were made by the husband including service of a registered notice dated 5.3.1984.
3. The appellant/wife, instead of replying to the notice dated 5.3.1984, demanded maintenance amount to the tune of Rs. 300/- per month. Therefore, it was alleged that it was the wife who deprived the husband of his conjugal rights, and on these facts the petition under Section 9 of the Act, seeking decree for restitution of conjugal rights, was filed.
4. The appellant in reply to the petition submitted that she was being ill-treated with cruelty and the respondent in the month of June, 1982 turned her out after snatching all the ornaments and battering. Under these circumstances she could not return to the marital home. It is also contended that in between the respondent/husband never made any attempts to bring her back. She further pleaded that this all has been done deliberately by the respondent to keep her aloof and taking advantage of the situation to enter into a second marriage. She also apprehended that her life would not be safe and even she might be done to death, if she returned to her marital home.
5. The learned District Judge, on the basis of the pleadings of the respective parties framed an issue relating to alleged cruelty :
"If it could give reasonable apprehension to the wife that it would not be safe for her to live with her husband ?"
and, on discussing the evidence relating to cruelty, as pleaded by the wife, the learned district Judge reached the conclusion that no case is made out to hold that there was any reasonable ground for the wife to deprive the husband of his conjugal rights by not discharging her marital obligations, and hence decreed the suit for restitution of conjugal rights, against which this appeal has been filed,
6. The husband/respondent before this Court, though served, remained absent. S.P.C. was also issued for fixed date of hearing, but the same has not been respondent to. by the husband.
7. On behalf of the appellant an application vide l.A. No. 1250/90 has been filed under Section 13(1)(a)(ii) of the Act, praying for dissolution of marriage by a decree of divorce on the ground that there has been no restitution of conjugal rights between the parties for a period of two years and onwards after passing the decree impugned restituting the conjugal rights.
8. In the opinion of this Court, this application deserves to be rejected outright, inter alia, on the ground that -firstly, there is no evidence on record to establish that there has been no restitution of conjugal rights between the parties for a period of two years or onwards after the decree restituting the conjugal rights was passed. Therefore, for want of any cogent evidence, it is difficult to accept the contention of Shri Samaiya for grant of decree under the provisions of Sec. 13(1) (a)(ii) of the Act. Secondly, the right conferred by Section 13(1) (a)(ii) of the Act is subject to the provisions of Sec. 23(1) of the Act, hence, it is open to the Court to refuse a decre
