The burden of proof for withdrawal from the society, the requirement of a bonafide desire to resume matrimonial cohabitation, and the need for an inquiry into the facts of each case to determine reasonable excuse for leaving or withdrawing from the spouse's society.

ANJULI PALO, J.

1. This appeal has been filed by the husband/appellant under Section 19 of the Family Court Act, 1984 read with Section 28 of the Hindu Marriage Act, 1955 being aggrieved by the impugned judgment dated 19.5.2017 passed by Principal Judge, Family Court, Rewa in Civil Suit No. 107-A/2015, whereby the learned Family Court has dismissed the application under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights filed by the appellants.

2. It is not in dispute that the respondent is legally wedded wife of the appellant. Their marriage was solemnized on 19.1.2006 according to Hindu Rites and Ritual. One daughter was born due to their wedlock on 19.1.2010 namely Ku. Aditi.

3. The facts of the case in brief is that, after the marriage the respondent made pressure upon the appellant for better facilities. The appellant assured her to provide every facilities in future when he got a government job. On 15.8.2007 father of the respondent had expired and the respondent went to her parental house and returned back at her matrimonial house. In February, 2010, the appellant was appointed in the NCL, therefore, he started residing with the respondent at Bina. Her behaviour was not good with the appellant. On 3.7.2012, brother of the respondent took her at Rewa. Thereafter, the respondent is not agreed to reside with the appellant. The appellant wants to accompany her and his daughter, who was borne in the January, 2010. He sent a legal notice to the respondent. Even then she refused to reside with the appellant. Hence, the petition under Section 9 of the Hindu Marriage Act was filed for restitution of conjugal rights by the appellant against the respondent before the trial Court.

4. The respondent/wife denied the allegation and submitted that she had not made any quarrel with the appellant. The appellant was demanding a car in dowry, which was refused by her and her family members, therefore, she was tortured by the appellant and his family members. After birth a female child, the respondent was ill-treated by them. When the respondent was ill, the appellant had not provided any treatment to her. Hence, brother of the respondent had given a sum of Rs. 15,000/- to her for her treatment in the August, 2012. After abusing and assaulting the respondent, the appellant ousted his wife along with minor daughter. Therefore, she claimed the maintenance allowance from the appellant. The appellant malafidely filed the petition for restitution of conjugal rights to avoid their responsibility and to give the maintenance to his wife and daughter. Hence, the respondent has prayed to dismiss the petition.

5. Learned trial Court dismissed the petition filed by the appellant under Section 9 of the Hindu Marriage Act on the ground that he has failed to prove that the respondent without any sufficient or proper reason resided separately from the appellant. The trial Court further held that the appellant is himself in wrong side and he tortured his wife/respondent because she gave birth a female child. In the light of principles laid down in the cases of Chetandas Vs. Kamladevi, (2001) AIR SC 1709, Shailendra Koshthi Vs. Savita Koshthi, (2006) 4 MPHT 391, Mamta Vs. Rajesh, (2014) AIR M.P. 158 and Milan Vs. Sunil, (2008) ILR(MP) 36. The petition has been dismissed by the trial Court with cost of Rs. 1,000/-.

6. The present appeal has been filed by husband/appellant on the ground that the impugned judgment is erroneous both on infact and in law and is liable to be set aside. Every facilities have been provided by the appellant to the respondent. Even then, the respondent refused to live with him without any reasonable ground. The appellant tried to bring back the respondent to her matrimonial home but he failed. The respondent is not willing to change her behaviour. Hence, a legal notice was served on her with polite manner. Learned trial Court has wrongly observed that the counsel of the appellant served the notice with bad