JUDGMENT : Aravind Kumar, J. This appeal is directed against order dated 18.10.2014 passed by the Addl. Senior Civil Judge, Haveri, in M.C.No.45/2011 whereunder petition filed by the respondent-husband herein under Section 9 of the Hindu Marriage Act, 1955, (for short 'the Act') for restitution of conjugal rights, has been allowed. 2. We have heard Sri M.H.Patil, learned counsel appearing for appellant and Sri Shivsai M.Patil, learned counsel appearing for respondent. 3. Before commencement of the arguments by the respective learned advocates appearing for parties, we made enquiries as to whether any settlement can be arrived at between the parties and the answer was in negative on account of other litigations between some parties pending before various courts. Hence, we have heard the appeal on merits and perused the records secured from trial court. BRIEF BACKGROUND: 4. Marriage between respondent and the appellant came to be solemnized on 10.05.2007 at Malagi village of Hirekerur taluk as per custom prevailing in their community. Respondent filed a petition under Section 9 of the Act contending that appellant had not joined him at the matrimonial home and from the initial stage of marriage itself, she was quarrelling with his parents and also his handicapped sister for no reason whatsoever. It was further contended that wife use to always insist him to provide for a separate residence away from his family members, which demand he did not accede as he had to take care of his aged parents and at that point of time, wife had threatened to file false cases against him and his family members. It was further contended that wife was in the habit of going to her parental home quite often without informing him and from past three years preceding the date of filing the petition, she has been residing in her parents' house and not discharging her marital obligations. He sought for decree of conjugal rights to direct the wife to resume the marital obligation. It was also alleged that in spite of co-habitation, she had not conceived. She was given medical treatment and during the year 2010, she had left his company and in spite of efforts made by elders in the family, it did not yield any fruitful result. She has failed to come forward to discharge her marital obligation. It was also alleged that a false case was filed against him and his family members. 5. She has failed to come forward to discharge her marital obligation. It was also alleged that a false case was filed against him and his family members. 5. On service of notice of the petition, respondent appeared through her advocate, filed the statement of objections and admitted the relationship. She also alleged that at the time of marriage, Rs.50,000/- cash, five (5) tholas of gold and also motor-bike was given to the appellant by way of dowry. She has further alleged that her husband was in the habit of abusing her by using foul and filthy language and also suspected her character and has demanded additional dowry and in spite of advice given by elders in the family, he was not taking care of her with all respect and dignity. She further specifically and categorically alleged that he had taken second wife during the subsistence of their marriage and through second marriage, he has a son. Hence, she contended that there are no grounds for granting prayer sought for in the petition. 6. Respondent-Husband got himself examined as PW-1 and got marked one document as Ex.P.1. However, appellant/wife neither cross-examined PW-1 nor tendered her evidence. Hence, on the basis of material available on record, learned trial judge has proceeded to allow the petition by directing the wife to join the company of her husband for leading marital life and accordingly, decree for restitution of conjugal rights came to be granted. Hence, this appeal. 7. It is the contention of Mr.M.H.Patil, learned counsel appearing for appellant/wife that learned trial judge ought to have given an opportunity to cross-examine PW-1 and on account of lack of communication between wife and her advocate, she did not appear before court below and was not aware as to the factual position with regard to progress of the case and hence, he seeks for allowing the appeal by setting aside order under challenge. He would also elaborate his submission by contending that even otherwise learned trial judge could not have ordered for allowing the petition and independently, evidence ought to have been asserted which has not been done and as such, order under challenge is liable to be set aside. 8. He would also elaborate his submission by contending that even otherwise learned trial judge could not have ordered for allowing the petition and independently, evidence ought to have been asserted which has not been done and as such, order under challenge is liable to be set aside. 8. Per contra, Sri Shivasai M.Patil, learned counsel appearing for respondent-husband would support the impugned order under challenge and contends that without any justification, wife had left the company of her husband and on these grounds, petition had been filed for restitution of conjugal rights and as such, learned trial judge taking into account the uncontroverted facts as pleaded by husband, has proceeded to allow the petition and there is no ground whatsoever for allowing the appeal. Hence, he prays for dismissing the appeal. 9. Having heard the learned advocates appearing for parties and on perusal of the records secured from the trial court, we notice from the order-sheet of the trial court that matter was referred to mediation and no fruitful result therefrom emerged from the said exercise undertaken. Proceedings of trial Court would disclose from 13.08.2013 to 15.02.2014 continuously husband was absent before the trial court. Even on 26.02.2014 and 10.03.2014, he was absent and on his behalf, a prayer for adjournment was sought for and as such matter came to be adjourned so also on 09.04.2014, 22.04.2014, 09.06.2014. On 03.07.2014, husband appeared and tendered his examination-in-chief and after marking of document Ex.P.1, it was ordered to be listed for cross-examination on 04.07.2014. However, from 04.07.2014 till 25.07.2014, respondent-wife remained absent and there was no representation on her behalf and as such, trial judge left with no other option has proceeded to post the matter for arguments. From 06.08.2014 till 25.08.2014, learned advocate appearing on behalf of petitioner-husband has taken time for addressing final arguments. It is thereafter order under challenge came to be passed on 18.10.2014. 10. The records of the trial court in general and the statement of objections filed by the appellant-wife in particular would disclose that a specific plea has been raised by her in the written statement filed contending that her husband had already married for the second time and out of said marriage, there is a son born to her the respondent-husband. It is in this background, claim for conjugal rights will have to be examined. 11. It is in this background, claim for conjugal rights will have to be examined. 11. A plain reading of Section 9 of the Act would clearly disclose that either of the spouse would fall within the category of an aggrieved party to apply for restitution of conjugal rights and such right is circumscribed by the expression "without reasonable excuse". Where it is found that conduct of husband creates a reasonable apprehension in the mind of wife either she would be unsafe to stay with her husband or in the circumstances prevailing at her husband's house, it would not be feasible and appropriate for her to continue to stay and continue to discharge her marital obligation, she would be justified to contend or plead that there is reasonable cause for her to withdraw from the company of her husband. In the background of tenor of Section 9 of the Act, when the facts on hand are examined, it would clearly indicate that wife in her written statement filed to the petition for restitution of conjugal rights has specifically pleaded and contended that during the subsistence of her marriage with her husband, he got married for the second time and out of said marriage, a male child is born. This would be a good ground for withdrawing herself from the company of her husband. That apart, husband himself has admitted that a criminal case has been registered against him and his family members on the strength of the complained lodged by his wife alleging physical and mental torture resulting in FIR being registered for the offence punishable under Section 498-A read with Sections 3 and 4 of the Dowry Prohibition Act. This would also be an additional ground for the wife to recuse herself from the company of her husband. In the instant case, above referred grounds have been raised by the wife in her objection statement. However, there is not even a whisper in the examinationin- chief tendered by the husband traversing same. He has not denied averments made in the statement of objections filed by the wife. He has not filed any reply or rejoinder to the statement of objections filed by the wife. In these circumstances, it was incumbent upon the learned trial judge to examine and evaluate the evidence tendered by the husband-PW-1 independently de-hors his examination-in-chief not being subjected to cross-examination. He has not filed any reply or rejoinder to the statement of objections filed by the wife. In these circumstances, it was incumbent upon the learned trial judge to examine and evaluate the evidence tendered by the husband-PW-1 independently de-hors his examination-in-chief not being subjected to cross-examination. This exercise having not been undertaken and the initial burden cast on the petitioner-husband having not been discharged and there being no denial of the fact that husband had not taken second wife and there was no child born out of the said wedlock during subsistence of 1st marriage, it cannot be gain said by him that still he can insist for his first wife to discharge her marital obligation. Hence, we are of the considered view that respondent-husband had failed to satisfy the grounds on which he would have been entitled for restitution of conjugal rights. 12. That apart, it is submitted at the bar there is a petition for dissolution of marriage already filed by the respondent-husband which is pending before the jurisdictional court and as such question of directing wife to resume her marital obligation does not arise. However, parties are not in a position to state the case number in which said petition has been filed. If it is so, it would be open for the parties to urge all such grounds in said petition if it is pending. However, order of restitution of conjugal rights cannot be sustained for the reasons aforestated hereinabove. 13. Hence, the following: ORDER (i) Appeal is allowed. Order dated 18.10.2014 passed in M.C.No.45/2011 by the Addl. Senior Civil Judge, Haveri, is set aside, (ii) Petition filed under Section 9 of the Hindu Marriage Act, 1955, is dismissed.