JUDGMENT :- This is a wifes Second Appeal from a decree for restitution of conjugal rights that was passed against her originally by the Court of the Civil Judge, Shahjahanpur on the 29th October, 1979 and was confirmed on the 28th Aug. 1980 by the Court of the Fifth (Fourth?) Addl. District Judge. Shahjahanpur, on appeal. The following are the questions which were formulated at the hearing of the appeal under Order 41 Rule 11 of the Code of Civil Procedure, in this Court :- "(1) Whether the pleas taken by the husband in the alternative, namely, that the wife had withdrawn from his society without reasonable excuse and he wanted her back by a decree of restitution of conjugal rights, on the one hand, and that the wife intended to re-marry and he had developed apprehension from her as to the safety of person and property and was even suspicious of her character and claimed dissolution of marriage on those grounds by a decree of divorce, on the other hand, were self-destructive and no decree for restitution of conjugal rights could have been passed under these circumstances." "(2) Whether the finding of the two Courts below that the wife had no reasonable excuse for living away from the husband is vitiated in law." "(3) Whether the petition filed by the husband was a counterblast to the wifes application under Sec.125, Cr. P. C. and was liable to be dismissed on this ground alone." 2. The petition in this case made by the husband who is the respondent in this Court, is a strange amalgam of two self-contradictory or mutually exclusive and opposite remedies provided by Sections 9 and 13 of the Hindu Marriage Act. Just below the title the petition specifies Secs.9 and 13 of the Hindu Marriage Act, suggesting thereby, though without saying so expressly, that it was a petition made for relief under Secs.9 and 13 of the Hindu Marriage Act. The first paragraph of the petition states that the petitioner was married to the appellant on the 28th April, 1977 in accordance with Hindu customary rites. The second paragraph states that the petitioner and the appellant were Hindus at the time of marriage and continued to be Hindus. The third paragraph states that the petitioner is a Token-porter in the Railway Department and followed a regular life. The second paragraph states that the petitioner and the appellant were Hindus at the time of marriage and continued to be Hindus. The third paragraph states that the petitioner is a Token-porter in the Railway Department and followed a regular life. The fourth paragraph states that the appellant is living separately for the last nine months with her parents. The fifth paragraph states that the petitioner himself, his younger brother Nem Chand and mother went to call the appellant many a time but she did not listen to them and on the last occasion finally refused to come. The sixth paragraph states that the appellants father wanted to marry her again elsewhere to which she was agreeable. The seventh paragraph states that the appellant deliberately and without any cause refused to live with the petitioner. There was no ground for her refusal. Paragraph 8 states that the petitioner was in Government service and was in great need of a wife for his living, therefore, the need for the suit. The ninth paragraph states that the petitioner and the appellant both are young. Therefore, to maintain good conduct, it was necessary to resolve their mutual relations. Paragraph 10 states that the appellant intends to marry again. Therefore, the petitioner apprehended danger to his life and property from her. Paragraph 11 states that the character of the appellant is growing suspicious because in spite of advice she has not given up her intention of marrying again. Paragraph 12 states that the petitioner and the appellant were within jurisdiction of the Court and, therefore, the Court had jurisdiction. Paragraph 13 states that the valuation of the petition was Rs. 300/- and the court-fee paid was Rs. 37-50 P. The relief prayed for was; (a) that the petitioner may be granted against (the appellant) Bitto alias Shyamwati a decree under Sec.9 or 13 of the Hindu Marriage Act; (b) costs; and (c) any other relief. 3. I am surprised that the case so set out in the petition, ever went to trial. The petition was liable to be rejected for not disclosing a cause of action and for not being properly framed. That was the first objection taken. In the additional pleas. 3. I am surprised that the case so set out in the petition, ever went to trial. The petition was liable to be rejected for not disclosing a cause of action and for not being properly framed. That was the first objection taken. In the additional pleas. The second objection taken by the appellant in the additional pleas in her written statement was that a case under Sec.125 of the Code of Criminal Procedure for maintenance was pending in the Court of the Chief Judicial Magistrate. Shahjahanpur, and the 28th February, 1979 was the next date fixed therein. The next plea taken in the additional pleas was that the petitioner was a gambler and drunkard and spent all his salary in these evil habits and had even wasted all the jewellery of the appellant on drinks and gambling. It was next pleaded that because of these habits the petitioner beat the appellant and compelled her to bring money which she had no means of doing and ultimately she was turned out after being beaten in December, 1978. The next plea was that the appellant never refused to perform the conjugal rights. On the other hand, it was the petitioner who did not attend to the appellant even during her illness and turned her out of the house. In the next paragraph, it was stated that the appellant had suffered cruelty at the hands of the petitioner and he did not even now want to keen her. It was next stated that she had no intention of marrying again. The cause of the petition was said to be the petitioners desire to save himself from the claim for maintenance and to harass the appellant. It was then said that the petitioner never maid any maintenance nor did he ever come to take the appellant. It was added that the appellants parents were very poor and were unable to maintain her and she had no source of income. The petitioner was only harassing her in this manner. The last plea was that the petitioner was not entitled to any relief and the petition was liable to be dismissed with costs. 4. The first issue framed by the Trial Court was whether the objector was living with her parents without any proper reason or on account of the petitioners treatment. 5. The last plea was that the petitioner was not entitled to any relief and the petition was liable to be dismissed with costs. 4. The first issue framed by the Trial Court was whether the objector was living with her parents without any proper reason or on account of the petitioners treatment. 5. The first thing, which the learned Civil Judge held was that the petitioner was not entitled to relief under Sec.13 of the Hindu Marriage Act as the mere mention of the section in the relief claimed was not sufficient. The learned Civil Judge further observed that the petitioner had expressly stated before him that he had filed the petition for calling his wife and not for leaving her. The learned Civil Judge then proceeded to consider whether the petitioner was entitled to the relief of restitution of conjugal rights under Sec.9 of the Hindu Marriage Act and in considering that the learned Civil Judge placed on the appellant the entire burden of proving the grounds stated by her in the written statement for living separately. The learned Civil Judge did not appreciate the appellants pleas in defence properly. She never said that she was not willing to live with the petitioner. She only explained the circumstances in which she was allegedly turned out of the house. It was not disputed before me that the application under Sec.125 of the Code of Criminal Procedure was pending when the petition was filed. Indeed, I was informed that that application is still pending. In view of the claim for divorce, which the petitioner had made, his mere statement that he had filed the suit for getting back his wife was not sufficient for displacing the effect of the allegations made by him against the character of his wife in the petition. These allegations were that he doubted the good character of his wife and that she wanted to marry again. These are serious allegations against ones wife and prima facie amount to cruelty of the worst kind. A husband cannot say that he suspects the fidelity of his wife and yet demand to live with her by restitution of conjugal rights. The wifes statement on oath, on the other hand, fully proved the case set out in the written statement. These are serious allegations against ones wife and prima facie amount to cruelty of the worst kind. A husband cannot say that he suspects the fidelity of his wife and yet demand to live with her by restitution of conjugal rights. The wifes statement on oath, on the other hand, fully proved the case set out in the written statement. She did, however, add in cross-examination that she apprehended danger to her life and was, under the circumstances, not willing to go with her husband. It appears to me that the learned Civil Judge did not approach the case from a proper angle and placed an unduly heavy burden of proof on the wife to prove that she had been living separately by the force of circumstances and not because she wanted it. The insistence by the learned Civil Judge on corroborative evidence from the side of the wife was misplaced. From the side of the petitioner, apart from his own evidence, the statement of his only witness Ram Kripal (P.W. 2) was worse than useless. He only said that in his knowledge Ram Deo petitioner did not beat his wife and that he did not know that Ram Deo was in the habit of drinking. He said that he did not know why Bitto was not coming to live with the petitioner Ram Deo. Thus the only evidence on the record was the petitioner-husbands statement on the one side and the appellant wifes statement on the other, and of these two statements the statement of the wife was certainly preferable inasmuch as it was forthright and direct and proved the case pleaded by her. The husbands statement was vague and when he was asked about his claim for divorce as the last thing in cross-examination he said that his case was for restitution and he had instructed his lawyer accordingly. But the case pleaded by him was not for restitution only. It was for divorce also. Although he had pleaded that his younger brother and mother had both gone to fetch the appellant-wife, neither his younger brother nor his mother appeared in the witness-box to corroborate his claim. He made false allegations against the character of the wife in the petition and the petition was filed after the wife had filed an application under Sec.125 of the Code of Criminal Procedure. 6. He made false allegations against the character of the wife in the petition and the petition was filed after the wife had filed an application under Sec.125 of the Code of Criminal Procedure. 6. The lower Appellate Court also placed an unduly heavy burden of proof on the appellant-wife when it observed that the evidence given by her was not at all sufficient to establish a ground of divorce. The two Courts below were probably relying on the Explanation appended to Section 9 of the Hindu Marriage Act which says that "where a question arises whether there has been a reasonable excuse for withdrawal from society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society." 7. In the patriarchal state of society, in which we live, it is the husbands house which is regarded to be the matrimonial home, and, in almost all cases, while the husband alleges that the wife has voluntarily left his house and does not come back, the wife alleges that she was turned out. The first and the basic question which must be answered in these cases, is as to who has withdrawn from the society of the other, for, although physically the wife may leave her husbands house yet it may be the husband who has turned her out with the intention of bringing cohabitation to an end. In such circumstances although it is the wife, who has physically left the husbands house yet it would be the husband who would be said to have withdrawn from the society of the wife. In such a situation, the wife cannot be required to prove that she had a reasonable excuse for living separately from the husband. In a petition for restitution of conjugal rights filed by him, the husband must prove that the wife has withdrawn from his society. That can be said to be proved only when it is established that he did not turn her out, but it was she who has voluntarily or of her own accord, left his house. Thus, the initial burden of proving that the wife left the husbands place of her own accord and was not turned out by the husband, is on the husband. The evidence of the parties has to be weighed in that light. Thus, the initial burden of proving that the wife left the husbands place of her own accord and was not turned out by the husband, is on the husband. The evidence of the parties has to be weighed in that light. If the two courts below had approached the case in that light, they would have at once come to the conclusion that the husbands case that the wife had left his house of her own accord and was not coming back, was false and the wifes evidence that she had been turned out of the house was preferable and fit to be believed. The finding, in the present case, that the wife had failed to establish that she had reasonable excuse for living away from the husband is thus vitiated in law on account of the wrong approach and misplacing of the burden of proof entirely on the wife. The burden of proving that the wife had withdrawn from the husbands society lay on the husband who was the petitioner. He has miserably failed to prove that. I have already observed above that the allegations made by the husband against the wifes character in the petition itself, which he has allowed to stand without making any attempt to prove them only shows that they were falsely made in order to somehow guard against the application under Sec.125 of the Code of Criminal Procedure. The husbands explanation, and that too in reply to the last question under cross-examination, that he had sued for restitution of conjugal rights and had instructed his Counsel accordingly does not improve his case at all, for it cannot be believed that his counsel had included the claim for divorce without instructions from him. 8. In the result, I am satisfied that the husbands petition in this case was not fit to go to trial on the allegations made, and, at any rate, the husband had miserably failed in proving that the wife had withdrawn from his society. I further find that the allegations against the wifes character were falsely made in the petition, and, apart from being destructive of the petitioners case for restitution of conjugal rights, which involves a desire on the part of the petitioner for the same to live with the other spouse, the making of such unfounded allegations even amounts to cruelty in law. It appears to me clear that the wife had not withdrawn from the society of the husband. She had been turned out of the house and there could be no question for her to first show that she had some reasonable excuse for living away from the husband. It further appears to me that the petition, that was filed by the husband, was only a counter-blast to the application under Sec.125 of the Code of Criminal procedure, which was made by the wife, and which. I am informed, is still pending. 9. The appeal succeeds and is allowed with costs. The decree under appeal is set aside. The husbands petition is dismissed with costs throughout. Appeal allowed.