JUDGMENT : HARSHA DEVANI, J. 1. By this appeal under section 19 of the Family Courts Act, 1984, the appellant has challenged the judgment and decree dated 28.05.2019 passed by the learned Principal Judge, Family Court, Bhuj Kachchh (hereinafter referred to as the “Family Court”) in Family Suit No.77 of 2016, whereby the Family Court has granted a decree of restitution of conjugal rights under section 9 of the Hindu Marriage Act, 1955 (hereinafter referred to as “the Act”) in favour of the respondent. 2. The facts stated briefly are that the respondent-husband filed a petition under section 9 of the Act in the Court of the learned Principal Senior Civil Judge, Bhuj-Kachchh being Marriage Petition No.111 of 2015, seeking a decree of restitution of conjugal rights. In the said petition, the respondent has inter alia stated that the engagement took place with the consent of their family members and continued for a long time and thereafter, their marriage was solemnised as per the rites and rituals of the parties on 1.1.2009 at village Madhapar. From the wedlock, a daughter, named, Vedanshi was born, who, at present is in the custody of the appellant. The parties are ‘Patel’ by caste and the parties are originally residents of village Madhapar. 2.1 It is further averred that at the time of their engagement as well as marriage, the appellant and her parents were made conversant regarding the income of the respondent, his family and their economic position and other aspects, and at that time upon the parties being mutually satisfied and the marriage between the parties was solemnised. After the marriage, the parties were residing happily. The respondent and his family members had taken great care of the appellant and the respondent had worked day and night to fulfill every need of the appellant and he and his family members had, at all times, taken care that the appellant does not have to face any obstacles or has to put up with anything. 2.2 In the petition, it is the case of the respondent that the appellant knew very well that as compared to her father, the financial position of the family of the respondent was very weak and that his family is not economically very sound. 2.2 In the petition, it is the case of the respondent that the appellant knew very well that as compared to her father, the financial position of the family of the respondent was very weak and that his family is not economically very sound. This fact always irked her parents and at all times, the appellant’s father would talk arrogantly about his riches with a view to belittle the respondent, and time and again, insulted the respondent; despite which, till date, the respondent tolerated everything with a view to ensure that their married life goes on smoothly and the appellant does not find anything wanting. Considering this as a weakness of the respondent, the appellant’s parents used to increasingly interfere in each and everything in their household to the extent that they got a new house constructed in the Premnagar area of Village Madhapar and had compelled the respondent to reside there separately from his parents against his will. At that time, the respondent had politely told the appellant’s parents that he was the only son of his parents and that he wants to earn and maintain his family with self respect. Therefore, it would be good if they did not pressurise him to live separately from his parents; however, at that time also, the appellant’s father, in the presence of his family members and relatives, told him that he did not have the capacity to fulfill the needs of a millionaire’s daughter and by saying so, insulted the respondent in front of everyone and said that the appellant had told him that if he does not leave his parents and reside with her in the new house constructed by her father, she will involve him in cases. At such time, instead of supporting the respondent, the appellant had supported her parents. After extensive discussions and attempts to explain having failed, the respondent, with the good intention of ensuring that the appellant’s feelings were not hurt and her ego did not suffer, started residing with her at the new house in accordance with the wishes of her parents; and his parents, with smiling faces, had given their consent. Upon starting to reside at Premnagar, the appellant’s parents would come to their house in the morning and stay till night. Upon starting to reside at Premnagar, the appellant’s parents would come to their house in the morning and stay till night. In this regard, more than once, he had invited their attention to the fact that their coming to their house in this manner was not proper from the society’s point of view and had, time and again, requested them that if they come every Sunday, they can stay together and have meals, but instead of taking this in the right perspective, they had time and again insulted the respondent and his repeated requests had no effect on them; despite which, the respondent used to treat the appellant’s parents with respect. Upon the appellant becoming pregnant, with a view to see that the coming child gets citizenship of U.K. (United Kingdom) and in future does not have any difficulty in getting a Visa, it was decided that the child be born at London. At that time also, the appellant’s father found faults and had insulted the respondent, but keeping in view the child’s future, a separate house was taken on rent in London and the respondent had made arrangements for the birth of the child. At this time also, the appellant’s parents had come to London and would come to the flat, which the respondent had rented in London from the morning, and would interfere with everything in their house and at this time also, the respondent had requested the appellant, but she did not listen to him, and thereafter, on account of continuous instigation by her parents, the appellant deserted him and started living in the house which her father had built at Premnagar. 2.3 Thereafter, on account of instigation by her parents, the appellant made an application being Criminal Miscellaneous Application No.250 of 2015 against the respondent and his mother under the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the “Domestic Violence Act”) and without any justifiable reason, told the respondent to reside with his parents, and by doing so, the appellant had deserted the respondent and had not fulfilled her obligations as a wife, which be held as an illegal act and an order be passed directing the appellant to come to the respondent’s house and fulfill her matrimonial obligations. 2.4 It is further averred that with this kind of conduct of the appellant and her parents, the lives of the respondent and his daughter were being ruined. Therefore, the respondent issued a notice dated 1.12.2015 to the appellant to return home, but the registered letter was received back with an endorsement “as the owner was not present within the specified time, returned.” It is further stated that the appellant, on account of the instigation by her parents and being adamant, was not returning to his home and on account of her fault, he is required to file the application. 2.5 The cause of action for filing the application has arisen because the appellant has voluntarily and intentionally deserted him and has started residing separately, and thereafter, despite making numerous telephone calls, personally as well as through family members, elders and loved ones, asking her to return and even by letter dated 1.12.2015; she had not returned and the cause of action has continued. On these averments, the respondent husband had sought a decree of restitution of conjugal rights. 3. In response to the averments made in the petition filed by the respondent, the appellant filed a reply inter alia stating that the petition is a counterblast to the application filed by her under the Domestic Violence Act. That, with a view to escape liability of paying maintenance to the appellant and her daughter, the present petition has been filed with a mala fide motive. It is further stated that the respondent had continuously subjected her to mental and physical harassment and has spoiled her married life. It is further stated that the respondent has not cared to inquire about her and their daughter for the last three years and that her father has been supporting her financially and has also made arrangement of a separate house for her. The main refrain in her reply is that the respondent is not paying anything towards maintenance and wants to wriggle out of his responsibilities, and hence, he has filed the present petition. 4. Thereafter, the appellant filed a reply under section 24 of the Act denying the averments made in the petition. 5. Before the Family Court, the respondent had filed his affidavit of examination-in-chief and had been cross-examined by the learned advocate for the appellant. The appellant had also filed affidavit of examination-in-chief and had subjected herself to cross-examination. 4. Thereafter, the appellant filed a reply under section 24 of the Act denying the averments made in the petition. 5. Before the Family Court, the respondent had filed his affidavit of examination-in-chief and had been cross-examined by the learned advocate for the appellant. The appellant had also filed affidavit of examination-in-chief and had subjected herself to cross-examination. However, she had left the country in the midst of her cross-examination. After hearing the submissions advanced by the learned advocates for the respective parties, the Family Court passed the impugned judgment and decree granting a decree of restitution of conjugal rights under section 9 of the Act in favour of the respondent; and hence, this appeal. 6. Mr. B.J. Trivedi, learned advocate for the appellant, assailed the impugned judgment and decree by submitting that the Family Court has failed to appreciate the evidence on record in proper perspective. Inviting attention to the contents of the petition filed under section 9 of the Act, it was submitted that on such averments, one would seek divorce under section 13 of the Act and not restitution of conjugal rights. It was submitted that the respondent has failed to establish that the appellant had withdrawn from his society without any reasonable cause and, hence, the Family Court was not justified in granting a decree of restitution of conjugal rights. 6.1 It was submitted that the Family Court has been swayed by the fact that the appellant is residing in London, whereas the respondent is residing in India and is not in a position to go to London. It was submitted that the Family Court has come to this conclusion, without calling upon the respondent to produce his Passport, upon verification of which, it would be evident that the respondent has been travelling abroad on numerous occasions. It was submitted that therefore, on the evidence adduced by the respondent before the Family Court, no case was made out for granting a decree of restitution of conjugal rights under section 9 of the Act. It was, accordingly, urged that the impugned judgment and decree deserves to be set aside. 7. Mr. K.R. Dave, learned advocate for the respondent, had advanced various arguments at the time of hearing of the appeal. It was, accordingly, urged that the impugned judgment and decree deserves to be set aside. 7. Mr. K.R. Dave, learned advocate for the respondent, had advanced various arguments at the time of hearing of the appeal. However, today, the learned advocate has placed on record an affidavit of the respondent, wherein he has stated that if the court is satisfied that the order of the Family Court is not just and proper or that it requires interference, the court may pass appropriate orders even allowing the appeal and for that, detailed reasons may not be assigned. It is further averred that the appeal may be allowed even by consent. 8. However, Mr. B.J. Trivedi, learned advocate for the appellant, has opposed such request and submitted that the appeal be decided on merits. 9. Since the court is proceeding to decide the appeal on merits, it would be apposite to refer to the submissions made by the learned advocate for the respondent on the merits of the case. 10. Mr. Kirtidev Dave learned advocate for the respondent, submitted that the appellant had filed a divorce petition, which came to be subsequently withdrawn, which makes it clear that she did not want to continue in the society of the respondent. Therefore, it is quite clear that the appellant had withdrawn from the society of the respondent and, therefore, the burden lay upon the appellant to show that there was reasonable excuse for withdrawing from the society of the respondent. 10.1 It was submitted that at the time of their engagement, the appellant was well aware that the respondent would be residing in India and she had agreed to reside in India; and at the initial stage of their marriage, the parties had resided together in India. It was submitted that the appellant had agreed to go to U.K. for a limited purpose and was supposed to return to India. Therefore, by continuing to reside in London, the appellant has withdrawn from the society of the respondent, and hence, the Family Court was wholly justified in granting a decree of restitution of conjugal rights. 11. In the light of the facts and contentions noted hereinabove, the following points arise for determination: 1. Whether the respondent husband has proved that the appellant wife has withdrawn from his society without reasonable excuse? 2. 11. In the light of the facts and contentions noted hereinabove, the following points arise for determination: 1. Whether the respondent husband has proved that the appellant wife has withdrawn from his society without reasonable excuse? 2. Whether having regard to the evidence on record, the Family Court was justified in granting a decree of restitution of conjugal rights? 12. Before adverting to the merits of the rival contentions, a brief reference may be made to the record of the case, which reveals that the appellant had filed a divorce petition under section 13 of the Act, being Marriage Case No.17 of 2016, which was allowed to be withdrawn by an order dated 11.2.2017 on the basis of a purshis submitted by her. In the purshis, she has stated that the respondent is not ready and willing to settle the matter and the appellant is not in a position to fulfill her marital obligations, and since the daughter born from the wedlock was born in London and she is studying in London, it is not possible to time and again come to the Bhuj Court for recording her deposition. 13. The respondent has been examined at Exhibit 26, wherein he has reiterated the facts stated in the petition under section 9 of the Act. In his crossexamination, he has admitted that the appellant is a citizen of London and that their daughter was born in London. He has denied that he was physically assaulting the appellant and was constantly harassing her, and hence, she was compelled to reside in London. He has denied that after the birth of their daughter, without caring for her, he had returned to India. He has stated that time and again, he has tried to contact the appellant. He has stated that he is not in a position to go to London and maintain the appellant and their daughter because his business is in India. He has denied that after their engagement, his parents and the appellants' parents had carried out property transactions, on account of which, the divorce is not taking place. He has denied that if things are clarified about the properties, his parents are agreeable to the divorce. He has stated that it is for him to decide whether to give divorce and that he is not ready to give a divorce but is ready to keep the appellant. He has denied that if things are clarified about the properties, his parents are agreeable to the divorce. He has stated that it is for him to decide whether to give divorce and that he is not ready to give a divorce but is ready to keep the appellant. He has admitted that after being separated, he has never gone to London to meet his daughter and has voluntarily stated that he has an Indian Passport and is not in a position to go to London. He has admitted that at the time when his daughter was born, he had gone to London and that his daughter is studying in the 1st standard in a school in the Kingsbury area in U.K. and that the Government provides free education till the 12th standard. He has admitted that he has never transferred any money to the appellant or his daughter. He had denied that as the appellant is the only daughter, he has filed the suit to extract as much property or money that he can and that he has made false allegations and is deposing falsely. 14. The appellant, in her examination-in-chief, has reiterated the contents of her written statement. In her cross-examination, it has come out that she is a Post Graduate in Business Management. She has admitted that as she is educated, she knows what is good and bad for her and she adopts whatever is good for life. She has further stated that during the period between their engagement and marriage, once or twice, she had visited the respondent’s home, and during that period, she liked the respondents' parents as well as his family members. She has admitted that she was not pressurized by anyone to get married to the respondent. She has deposed that her father is engaged in the business of buying and selling of land and invests in the same and might be investing in share market also. She has denied that the respondent’s family is financially weak. She has admitted that after her marriage, the parties had purchased plots of land in partnership and had also purchased a flat in Mumbai, which is situated in the Navi Mumbai Panvel area. 14.1 The appellant was cross examined at length as regards the property owned by her father etc. She has denied that the respondent’s family is financially weak. She has admitted that after her marriage, the parties had purchased plots of land in partnership and had also purchased a flat in Mumbai, which is situated in the Navi Mumbai Panvel area. 14.1 The appellant was cross examined at length as regards the property owned by her father etc. It appears that such questions had been put with a view to show that the appellant is financially stable. In the crossexamination of the appellant it has come out that she does not remember the date of marriage and time and that after the marriage, she used to reside at the appellant's place; that she had resided with the respondent for two years in the Ghanshyamwadi area; and thereafter, they had gone to reside at Premnagar, Madhapar. The reason for going to stay there was that the respondents' parents were not constructing a new house and upon a new house being constructed by her father, the two of them had gone there. She has denied that as her father had paid for the construction of a new house, she and her parents had pressurized the respondent to reside separately and had compelled him to reside in that house. She has denied that her parents used to come to that house everyday in the morning and stayed there till the night and since the respondent found that this did not look proper in the eyes of the society, a quarrel took place with her parents and at that point of time, she had not supported him. She has denied that by mutual consent, to ensure that their daughter is born at London, they had both gone to London for the delivery. The witness has stated that this was a forced decision. She has admitted that the respondent had kept a house on rent in London and has further stated that the rent of the last four months was borne by her brother. It appears that thereafter, the appellant has not subjected her to further crossexamination, and hence, her crossexamination remained incomplete. 15. A perusal of the impugned judgment shows that the Family Court has referred to the evidence adduced by the parties and has thereafter recorded thus: “[9]. So, looking to the above facts, depositions of both the sides and also looking to the oral arguments advanced by the Ld. 15. A perusal of the impugned judgment shows that the Family Court has referred to the evidence adduced by the parties and has thereafter recorded thus: “[9]. So, looking to the above facts, depositions of both the sides and also looking to the oral arguments advanced by the Ld. Advocates for both the parties, I do agree with the arguments advanced by the Ld. Advocate for the petitioner Mr. J.R. Mehta i.e. respondent is never denied the marriage with the petitioner they are having one daughter and whose birth place is at London. Moreover, they were residing together more than two years at VillageMadhapar, Bhuj. Moreover, it is also admitted fact that respondent willingly leaving the petitioner and gone at London (UK). There is some financial transactions between both the parties, it is also to be noted which is not denied by the respondent in her crossexamination. So, due to willingly avoidance of the petitioner by the respondent so he has to file above petition under Section 9 of Hindu Marriage Act for restitution of conjugal rights. He also drawn attention regarding the conduct of the respondent that she is also not came before this Court for further crossexamination and ran away at London (U.K.) without lead his evidence and also she is not ready to face the trial. Moreover, she also not given any evidence before this court to rebut the facts of the plaint and deliberately avoiding the petitioner, so this attitude also go against the respondent. So, he requested to court decreed the suit as prayed for [10]. Against that Ld. Advocate of the respondent stated that respondent is the citizen of the London (U.K.) it is not possible for her to reside at Bhuj, so this Court have no jurisdiction to make any decree of the respondent when she is not citizenship of India, but I do not agree with above argument because it is crystal clear position that marriage took place at Bhuj jurisdiction of this Court and they' both are last resided together at this jurisdiction of this Court, and so many / financial transactions had between both the parties. It is admitting position in that case willful avoidance of the petitioner lay respondent gone to reside at London (U.K.) and leaving the petitioner without any reasonable excuse. It is admitting position in that case willful avoidance of the petitioner lay respondent gone to reside at London (U.K.) and leaving the petitioner without any reasonable excuse. In that case one cannot give benefit regarding respondent residing at London (U.K.), but she has to come at Bhuj for restitution of conjugal rights after marriage when she is already resided together more than 2 years and petitioner having one child. Moreover, it is also to be noted, she is not cared to come before this Court for further crossexamination. Not only that she is not filed any evidence to rebut the facts of the petitioner. So, her approach, attitude and conduct shows clear that she is deliberately avoiding the petitioner. So on above ground and the reasons stated herein above answer of all the Issues mentioned as above. Hence, I pass the following order.” 16. These, in sum and substance, are the findings recorded by the Family Court for granting a decree of restitution in favour of the respondent. From the findings recorded by the Family Court, it appears that according to it, it was an admitted position that this is a case of willful avoidance of the respondent by the appellant herein who had gone to reside at London leaving the respondent without any reasonable excuse; therefore, the appellant cannot be given the benefit of being a resident of London, but has to come to Bhuj for restitution of conjugal rights after marriage where she has already resided together for more than two years and had a child. Moreover, the appellant has not cared to come to the court for further crossexamination and has not adduced any evidence to rebut the case of the respondent. So, her approach, attitude and conduct show that she is deliberately avoiding the respondent. On these grounds, the decree has been granted. 18. Section 9 of the Act provides for restitution of conjugal rights and reads thus: “9. Restitution of conjugal rights. When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other 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. 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. 17.1 Thus, for the purpose of satisfying the requirements of section 9 of the Act, the party who makes the allegation has to show that the spouse has withdrawn from his/her society and once that is established, the burden lies upon the spouse to prove that he/she had reasonable excuse for withdrawing from the society of the other. 18. The findings recorded by the Family Court may be tested on the basis of the evidence on record, which has been reproduced at length hereinabove. A perusal of the evidence adduced by the respective parties makes it clear that at no point of time, the appellant – wife has admitted that she is willfully avoiding the respondent husband. While it is true that the appellant had gone away to London in the midst of her crossexamination, nonetheless, even if the appellant had not turned up at all or not responded to the summons issued by the court, the burden lay upon the respondent-husband to prove his case before the court and show that the appellant had withdrawn from the society of the respondent. It is only if this requirement is satisfied that the burden would shift upon the appellant, who would thereafter be required to show that there was a reasonable excuse for withdrawing from the society of the respondent. Therefore, it would be necessary to appreciate the evidence adduced by the respondent. 19. On reading the examination-in-chief of the respondent, it is clear that it is very sketchy and vague. The respondent has stated that as the appellant was pregnant and with a view to ensure that the child becomes a citizen of U.K., she had gone to London for child birth and the respondent had also gone to London at that time. The respondent; however, has not given any dates as to when they had gone to London; and as to when their daughter was born. The respondent; however, has not given any dates as to when they had gone to London; and as to when their daughter was born. In the application under section 9 of the Act as well as in his examination-in-chief, the respondent has made allegations of interference by the parents of the appellant even in London, and then, suddenly he has made averments about the appellant residing in the house at Premnagar and asking him to leave the house go and reside with his parents. The respondent has not stated as to when they had returned from London, and thereafter, for how long they had resided at Premnagar before the appellant had asked him to leave; he has also not stated as to when the appellant had returned to London. Thus, the respondent has not brought proper facts on record and the facts as stated by him are incoherent. Moreover, the respondent has made a bald statement that he is not in a position to go to London; and the Family Court has accepted the same at face value, without applying its mind as to why a person, even if he is not a citizen, would not be able to go to London, more so, when, earlier, he had gone there at the time when his daughter was born. 20. Considering the vague facts stated in the petition, which are more in the nature of grievances against the parents of the appellant and their conduct, there is hardly any material to establish the fact of the appellant having withdrawn from the society of the respondent. In the memorandum of petition, the respondent has stated that while they were in London, the appellant’s parents would come to the flat which he had rented, right from the morning and used to interfere in everything in their house and at that time also he had requested them, but they did not listen and thereafter on account of their instigation, the appellant had voluntarily deserted him and gone to live in the house which her father had constructed in Premnagar and at the instigation of her parents had filed a case of Domestic Violence against the respondent and his mother which was withdrawn, and without any reasonable cause she had told the respondent to go and stay with his parents and in this manner had deserted him and not fulfilled her obligations as a wife. 21. Upon considering the aforesaid part of the testimony of the respondent, it is apparent that the same is self contradictory. On the one hand he says that the appellant had deserted him and gone to live in the house at Premnagar and on the other hand says that the appellant had asked him to leave the house and go and reside with his parents. Thus, there is no clarity in the allegations made by the respondent in the memorandum of petition or in the examination-in-chief. From the evidence adduced by the respondent – husband there is no clarity as to how and when the appellant – wife has withdrawn from his society, under the circumstances, on the basis of such vague facts it is not possible to state that the basic ingredient of section 9 of the Act, namely that the appellant wife had without reasonable cause withdrawn from his society has been established by the respondent husband. 22. In the light of the evidence adduced by the respondent, the court is of the view that no reasonable person could come to the conclusion that the appellant has, without reasonable excuse, withdrawn from the society of the respondent. Under the circumstances, the Family Court was not justified in granting a decree of restitution of conjugal rights under section 9 of the Act. Points No.1 and 2, stand answered accordingly. 23. It may further be noted that in the affidavit filed by the respondent, which has been submitted before this court today, it has been averred that after the Family Court had delivered the judgment on 28.05.2019, he had waited for a month for reunion. However, as there was no response, he felt that if the reunion is not possible, then to get separated would be a better option. Therefore, under advice, he had got the papers of divorce prepared through an advocate in U.K. and had instructed him not to proceed further with the matter till further instructions. Thereafter, in the month of January 2020, he had asked the learned advocate in U.K. to proceed further with the divorce petition as by that time, he was convinced that now the appellant is not interested in coming back and staying in India. 24. Thereafter, in the month of January 2020, he had asked the learned advocate in U.K. to proceed further with the divorce petition as by that time, he was convinced that now the appellant is not interested in coming back and staying in India. 24. In the light of the above discussion as well as the fact that the respondent has himself filed a petition for divorce in the court at U.K., no case is made out for grant of a decree of restitution of conjugal rights as contemplated under section 9 of the Act. The appeal, therefore, succeeds and is, accordingly, allowed. The impugned judgment and decree dated 28.05.2019 passed by the learned Principal Judge, Family Court, Bhuj Kachchh, in Family Suit No.77 of 2016, is hereby quashed and set aside. 25. In the light of the order passed in the main petition, the civil application for additional evidence does not survive and stands disposed of accordingly.