JUDGMENT : Mir Dara Sheko, J. The subject matter of challenge in the appeal is a judgment and decree dated 27th August, 2014 by which an application under section 9 of the Hindu Marriage Act registered as Matrimonial Suit No. 85 of 2011 was dismissed on contest without any order as to costs. Aggrieved by the order of dismissal the petitioner has come up in appeal. Briefly stated the fact and circumstances of the case are as follows: Both the parties to the suit are residents of Port Blair. The petitioner is a Government servant aged about 32 years. The respondent is a B.Sc. in Biotechnology. They were married as per Hindu Rites and Customs on 7th February, 2011. The Bohu Bhat ceremony took place on 10th February, 2011. The marriage was duly consummated. 2. The petitioner is the only son of his parents. The respondent is the only daughter of her parents. Shortly after the marriage the respondent started complaining about the behaviour of the mother-in-law and the sister-in-law. The sister-in-law is a married woman. Her husband at the relevant point of time was posted at Assam. She as such was living with her parents. During the period between 14th February, 2011 and 25th February, 2011 the respondent insisted upon looking after the business of her uncle (mother's sister's husband) carried on under the name and style of Kalapani Tours and Travels. The father-in-law was initially hesitant, but he ultimately permitted her to do so. Though it is alleged that the mother-in-law was not inclined to allow her to do so. On 20th March, 2011, she returned to her paternal house and did not come back. The defence of the respondent is confession and avoidance. She admits that she has been residing at her paternal house since 20th March, 2011, but she tried to justify her conduct by alleging ill-behaviour of the mother-in-law and the sister-in-law. Both the parties have alleged that there were attempts for reconciliation. The petitioner alleged that attempts of reconciliation failed because the respondent was not inclined to reside at her matrimonial home with the parents of her husband. Whereas the respondent has alleged that her father tried to bring about a reconciliation which failed due to obstinacy of the parents of the petitioner. 3. It is not in dispute that the respondent left Port Blair for Chennai on 16th October 2011. Whereas the respondent has alleged that her father tried to bring about a reconciliation which failed due to obstinacy of the parents of the petitioner. 3. It is not in dispute that the respondent left Port Blair for Chennai on 16th October 2011. According to the petitioner he was not informed about such visit. Case of the respondent is that she went Chennai for her mother's treatment with the consent of the petitioner. 4. Case of the petitioner is that the respondent was treated with utmost love and affection both by the petitioner and his parents, whereas the case of the respondent is that her mother-in-law treated the former like a maidservant and pressurised her to sweep the house seven to eight times per day and would also ask her to wash all the utensils. She has also alleged that the mother-in-law did not allow her access to her wardrobe and she would not allow to close the doors of her bedroom while the couple were going to sleep. 5. On the basis of the aforesaid pleadings the learned Trial Judge framed the following issues:- "Issues 1. Whether the instant suit is maintainable in present form? 2. Whether the Respondent has withdrawn from the society of the Petitioner without reasonable excuse? 3. Whether the Petitioner caused the Respondent to leave matrimonial home? 4. Whether the Petitioner is entitled to get relief as prayed for?" 6. The petitioner in his examination-in-chief adduced by an affidavit has reiterated his case and has also denied the allegation made by the respondent in her written statement, briefly indicated above, justifying her withdrawal from the society of her husband. During his cross-examination it was suggested that his mother and sister jointly tortured the respondent, which he denied. The petitioner was also suggested that his mother had restrained the respondent to use her wardrobe by locking the same, which the petitioner denied. The petitioner was also suggested that the respondent was forced to sweep the house seven to eight times a day, which he denied. He was also suggested that the respondent was made to work like a maid servant at her matrimonial house, which he also denied. The petitioner was suggested that he did not make any attempt to take back the respondent to her matrimonial house, which he denied. He was also suggested that the respondent was made to work like a maid servant at her matrimonial house, which he also denied. The petitioner was suggested that he did not make any attempt to take back the respondent to her matrimonial house, which he denied. He was also suggested that the parents of the respondent requested the petitioner to take the respondent to her matrimonial house, which the petitioner denied. He was suggested that suit for Restitution of Conjugal Rights had been instituted by the petitioner to avoid criminal proceeding against them, which he denied. 7. Although the respondent filed her written statement and cross-examined the petitioner, she did not thereafter contest the suit. Neither she examined any witness, nor did she herself enter the witness box. She, as a matter of fact, did not participate in the conduct of the suit any more. The suit was decided ex-parte. The learned Trial Court dismissed the suit by a cryptic judgment and the reasoning advanced by him is as follows:- "In the present case the petitioner has examined himself as PW-1 and he has corroborated the fact of withdrawal of his wife from his society but the parents of the petitioner who were very much with him at his house when the Respondent allegedly of her own withdrew herself from the society of the petitioner, has not been examined by the petitioner. In my view the parents of the petitioner are the best persons to corroborate the fact of wilful withdrawal of the Respondent from the society of the petitioner but the parents of the petitioner have not been examined as witnesses to corroborate this fact. Under such circumstances, we have no other option but to draw the presumption of section 114(g) of Evidence Act: that evidence which could be is not produced would, if produced, be, unfavourable to the person who withholds it. In my considered view the petitioner intentionally withheld the evidence of the parents knowing fully that might be unfavourable for him. I have closely gone through the evidence of the petitioner. The sole uncorroborated evidence of the petitioner does not inspire to accept the case of the petitioner that the respondent withdrew herself from his society without reasonable excuse. As such these issues are answered in negative. I have closely gone through the evidence of the petitioner. The sole uncorroborated evidence of the petitioner does not inspire to accept the case of the petitioner that the respondent withdrew herself from his society without reasonable excuse. As such these issues are answered in negative. Considering all aspects I am of the view that the petitioner has failed to prove his case, as such he is not entitled to get any decree as prayed for." 8. We have heard the learned advocates for the parties and are of the opinion upon analysis of the pleadings and analysis of the examination-in-chief and cross-examination of the petitioner that the respondent has not denied the fact that she withdrew herself from the society of her husband. She however, alleged that it is due to misbehaviour of the mother-in-law and the sister-in-law of the petitioner that she was compelled to do so. Her further case is that in order to avoid criminal proceedings the suit for Restitution for Conjugal Rights was filed by the petitioner. The respondent has not, however, disclosed any particulars of any criminal offence except for alleging that she was treated as a maidservant and was also compelled to do menial jobs of the household. She has alleged that the mother-in-law did not allow her access to her wardrobe and further that the mother-in-law did not allow her to close the door of her bedroom when they were going to sleep. These allegations were obviously made to justify her withdrawal from the society of her husband. Therefore, the burden of proving these allegations was upon the respondent herself. She did not discharge that burden. She as matter of fact did not even enter the witness box. Therefore, the grounds raised by her to avoid the charge of withdrawal from the society of her husband without reasonable excuse evaporated in the thin air. The fact of withdrawal from the society of her husband without reasonable excuse as pleaded and proved by her husband stood firmly established both by the evidence adduced by the petitioner and also by the confession made by the respondent herself as indicated above. 9. It was an application under section 9 of the Hindu Marriage Act which provides as follows:- "9. Restitution of conjugal rights. 9. It was an application under section 9 of the Hindu Marriage Act which provides as follows:- "9. Restitution of conjugal rights. - When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly. [Explanation.- Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society." 10. The legislature as a matter of abundant precaution has added an explanation to Section 9 of the Hindu Marriage Act providing that burden of proving reasonable excuse shall be on the person who has withdrawn from the society. The aforesaid burden was not discharged by the respondent. There is still another way of looking into the matter. The allegations made by the petitioner alleging obstinacy and adamant attitude including her open declaration that she would not go back to her matrimonial house were not controverted by the respondent from the witness box. The resultant effect in law is that the evidence adduced by the petitioner which was prima facie in nature became a conclusive piece of evidence. Reference in this regard may be made to a by Division Bench judgment of this Court in the case of Pranballav Saha and another v. Smt. Tulsibala Dassi and another reported in AIR 1958 Calcutta 713, wherein the following view were expressed:- "14. Before leaving this question of fact it is necessary to emphasise the defendant's absence from the witness-box and the effect of such absence on the issue of fact. In fact not only the defendant but no witness on her behalf gave any evidence at the trial. The learned trial Judge says on this point: "The counsel for the plaintiff made strong comment on the absence of the defendant from the witness-box and contended that because of such absence I ought to presume that she kept herself away from the witness box in order to prevent the truth coming out of her own lips. The learned trial Judge says on this point: "The counsel for the plaintiff made strong comment on the absence of the defendant from the witness-box and contended that because of such absence I ought to presume that she kept herself away from the witness box in order to prevent the truth coming out of her own lips. Before the court can be called upon to make any presumption of the kind it is for the plaintiffs to satisfy the court prima facie that they have made out a case." The question then is what is a prima facie case. All the evidence of reputation from family physician, executors, trustees, local residents is there. It is surely prima facie evidence. The distinct charge in the evidence from the witness box is (1) that the defendant is a prostitute and carries on prostitution and (2) that she took the house on rent to run a brothel there. That is the prima facie case. She does not come herself nor calls any witness to deny these serious allegations of fact. Whether the Judge should believe one witness or another or one case or another in such a context of facts is not then a question of prima facie case. It is then a question of the weight of evidence and its credibility. Prima facie case is not the conclusive case and the learned Judge mistook the one for the other in his judgment. The very fact that the defendant neither came to the box herself nor called any witness to contradict evidence given on oath against her shows that these facts cannot be denied. What was prima facie against her became conclusive proof by her failure to deny." 11. The learned Trial court was utterly wrong in proceeding on the basis that because the parents of the petitioner were not examined presumption under section 114(g) of the Evidence Act would be applicable. The learned Trial Court failed to realise that he already was satisfied that "the petitioner has examined himself as PW-1 and he has corroborated the fact of withdrawal of his wife from his society of her own" the onus thereafter to prove that there was reasonable excuse to withdraw from the society of her husband shifted to the wife which she did not discharge. In the absence of evidence to prove that there was reasonable excuse to withdraw from the society of her husband there was no obligation on the part of the petitioner to disprove that fact. This is not also a question of onus. This on the contrary is a question of burden statutorily fixed upon the person who has withdrawn from the society. When the wife who had withdrawn from the society of her husband did not discharge her burden, the only conclusion, which can be arrived at, is that the respondent had withdrawn from the society of her husband voluntarily and without any reasonable excuse. The mere fact that the parents of the petitioner were also residing with him was of no significance nor on the basis of the absence of the parents of the petitioner from the witness box an adverse presumption could have been raised. The learned Trial Judge we are sorry to say has misapplied the law. 12. This is not all the learned Trial Judge did not also notice the fact that the respondent made the following averment in paragraphs 14 of her written statement:- "14.. The respondent further say that the respondent was always interested to continue with the marital tie as the respondent considered marriage to be a very sacred tie and as such, the respondent is still willing to reside with the petitioner." 13. In the face of the aforesaid pleading by the respondent coupled with her absence from the witness box to prove reasonable excuse for withdrawing from the society of her husband should have alerted the learned trial judge that she was willing to go back to her husband. The decree dismissing the suit is clearly wrong and is set aside. 14. We are satisfied that the grounds for granting relief exist in the case and the appellant is not in any way taking advantage of his own wrong. 15. There shall thus be a decree for restitution of conjugal rights. Let the formal decree be drawn up and completed within a month. A copy of this judgment be sent to the learned judge who heard the suit for his perusal, by the Registry. Girish Chandra Gupta, J. - I agree.