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1999 DIGILAW 1057 (DEL)

ARUNA GORDON v. G. V. GORDON

1999-11-30

M.K.SHARMA

body1999
DR. M. K. SHARMA. J. ( 1 ) THIS revision petition is directed against the order dated 18. 12. 1998 passed bythe Additional District Judge, dismissing the application filed by the petitioner underorder 14, Rule 5 Civil Procedure Code praying that the burden of proving issue No. 1 should beshifted to the respondent herein. ( 2 ) A petition was filed by the respondent under Section 32 of the Indian Divorceact, seeking for a decree of restitution of conjugal rights. The aforesaid petition wascontested by the petitioner herein and on the basis of the pleadings of the parties, thefollowing issues were framed :- 1. Whether the respondent has withdrawn from the society without anyreasonable excuse? OPR. 2.- Relief. The burden of proving the aforesaid issue No. 1 was thus placed on thepetitioner. Accordingly, the aforesaid application was filed by the petitioner seekingfor shifting of the burden of proving issue No. 1 to the respondent. By the impugnedorder, the said application was dismissed holding that the burden of proving theissue No. 1 was rightly placed on the petitioner. While coming to the aforesaidconclusion, the Additional District Judge took notice of the provisions of Section 9 ofthe Hindu Marriage Act and after referring to the explanation given thereto, held thatthe said explanation is a guiding consideration for holding that even under Section 22of the Indian Divorce Act, the burden of proving reasonable excuse would be on theperson who has withdrawn from the society. ( 3 ) COUNSEL appearing for the petitioner submitted that the aforesaid order passedby the Additional District Judge is contrary to the statutory provisions of the Indiandivorce Act and the Indian Evidence Act and-accordingly the same is liable to be setaside. He further submitted that the explanation as appended to Section 9 of thehindu Marriage Act was brought in the said Act in the year 1976 and similaramendments were also made even. in the Special Marriage Act, but the Legislaturethought it fit not to put the burden of proving reasonable excuse on the person whohad withdrawn from the society, under Section 32 of the Indian Divorce Act, andtherefore, the aforesaid explanation could not have been held to be a guiding factor incoming to the conclusion in the present case also. in the Special Marriage Act, but the Legislaturethought it fit not to put the burden of proving reasonable excuse on the person whohad withdrawn from the society, under Section 32 of the Indian Divorce Act, andtherefore, the aforesaid explanation could not have been held to be a guiding factor incoming to the conclusion in the present case also. In support of his contention he alsorelied upon the decision of the Karnataka High Court in Smt. Jyothi Pa/vs. P. N. Pratap Kumar Pai; reported in AIR 1987 Karnataka 24- ( 4 ) RESPONDENT appeared in person and submitted that burden of proving reasonableexcuse always lies on the person who withdraws from the society of others and,therefore, the Trial Court acted legality and within its jurisdiction in dismissing theapplication and rejecting the prayer for shifting the onus to the respondent. Hesubmitted that when in similar statutes, burden of proving reasonable excuse hasbeen put on the person who withdraws from the society of others, such provisionwould be a guiding factor for interpretation of the provisions of Section 32 of theindian Divorce Act also. In support of his submission, he relied upon a decision of thiscourt in Ramesh Kumar Gambhir Vs. Sudesh Ggmbhir; reported in 1978 Allindia Hindu Law Reporter 317, Smt. Manjit Kaur alias Charan Kaur Vs. Jagdevsingh; reported in 1978 All India Hindu Law Reporter 543, Smt. Reena Mitra Vs. Shri Ashesh Kumar Mitrar Teported in 1991 (1)AII India Hindu Law Reporter 516. ( 5 ) IN the light of the aforesaid submission made on behalf of the parties, I haveperused the records as also the relevant provisions referred to and relied upon by theparties. ( 6 ) A decree for restitution of conjugal rights under the Hindu Marriage Act could besought for by an aggrieved party under the provisions of Section 9. An explanationwas appended to the said provision by the Amendment Act 68 of 1976 whichprovides that where a question arises whether there has been reasonable excuse forwithdrawal from the society, the burden of proving reasonable excuse shall be on theperson who has withdrawn from the society. Similar amendments were also made in"section 22 of the Special Marriage Act which also deals with the provision ofrestitution of conjugal rights. However, such amendments were not made by thelegislature in Section 32 of the Indian Divorce Act which also deals with the provisionfor restitution of conjugal rights. Similar amendments were also made in"section 22 of the Special Marriage Act which also deals with the provision ofrestitution of conjugal rights. However, such amendments were not made by thelegislature in Section 32 of the Indian Divorce Act which also deals with the provisionfor restitution of conjugal rights. Section 32 of the Indian Divorce Act reads as follows :- "32. Petition for restitution of conjugal rights, When either the husbandor the wife has, without reasonable excuse, withdrawn from the society of theother, either wife or husband may apply, by petition to the District Court or thehigh Court, for restitution of conjugal rights, and the Court, on being satisfiedof the truth of the statements made in such petition, and that there is no legalground why the application should not be granted, may decree restitution ofconj. ugal rights accordingly. "a bare perusal of the aforesaid provision would show that the amendment asappearing in the other two enactments has not been incorporated in this Act. Underthe provisions of the Civil Procedure Code, it is for the party to prove the case that hepleads in the plaint/petition. Provisions of Sections 102 and 103 of the Evidence Acthave also relevance. ( 7 ) WHERE the husband has filed a petition for restitution of conjugal rights onassertion that his wife had withdrawn from his society without any reasonable excuse,he has to prove the truth of the aforesaid statements made in such petition for, if hefails to lead any evidence, then he would not be in a position to get any relief from thecourt as the Court has to be satisfied of the truth of the statements made in thepetition. So long the Court is not satisfied of the truth of the statements made in thepetition, no decree could be passed in favour of the petitioner. It is needless to saythat unless the petitioner leads some evidence to show that the statements made byhim are truthful, the Court cannot be satisfied that there is truth in the statement of thepetitioner. However, if by a statutory provision the burden is placed on the person forproving reasonable excuse for withdrawal from the society, the position would bedifferent. It is needless to saythat unless the petitioner leads some evidence to show that the statements made byhim are truthful, the Court cannot be satisfied that there is truth in the statement of thepetitioner. However, if by a statutory provision the burden is placed on the person forproving reasonable excuse for withdrawal from the society, the position would bedifferent. ( 8 ) THE decisions referred to and relied upon by the respondent was deliveredtaking notice of the explanation appended to the statutory provision and taking noticeof the same, since no such explanation is appended to the present provision withwhich I am concerned in the present petition, the ratio of the aforesaid decisionscould not be said to be applicable to the facts of the present case. In this connection,reference may be made to the decision of the Bombay High Court in Ratnaprabhabaivs. Sheshrao , reported in AIR 1972 Bom 182 , wherein it has been laid down that ifthe petitioners, were not to lead any evidence, then the petitioner would not be in aposition to get any relief from the Court because the Court has to be satisfied of thetruth of the statements made in the petition. Once the petitioner is able to lead anyevidence in support of his contention, the onus would only shift to the petitioner whoshall have to establish that the withdrawal from the society of another was for areasonable excuse. ( 9 ) IN view of the aforesaid position, I am of the considered opinion that, once theonus of proving issue No. 1 is placed on the respondent, it should be for him todischarge the burden in terms of the aforesaid order. The onus for proving issue No. 1 shall therefore, be initially placed on the plaintiff. With the aforesaid modification in the order of the Trial Court, the petition standsdisposed of.