JUDGMENT : SHREE CHANDRASHEKHAR, J. 1. The husband is aggrieved of the judgment dated 22nd February 2017 passed in Title Matrimonial Suit No. 230 of 2013 and the decree dated 28th February 2017 prepared thereon - suit for restitution of conjugal rights filed by the wife has been decreed. 2. Title Matrimonial Suit No. 230 of 2013 was instituted by the wife on the ground that her husband had withdrawn himself from her society without any reasonable cause or excuse. Their marriage was solemnized on 17th April 2000 at Sector-III/B, Quarter No. 299, B.S. City, Bokaro and after the marriage she lived in her matrimonial home for some time. At the time of the marriage, she was a medical student and at the instance of her husband she went to Kazakhstan (Russia) for study. As per the plaint averments, she was not extended proper respect and honor by her husband and in-laws and whenever she visited her matrimonial home the family members of her husband abused, tortured and embarrassed her in various manners for their unlawful demand of dowry. In the circumstances, she was constrained to lodge a First Information Report under section 498A of the Indian Penal Code and section 3/4 of the Dowry Prohibition Act against her husband and his family members vide Harla PS Case No. 31 of 2007 dated 20th February 2007. Her husband instituted Title Matrimonial Suit No. 12 of 2008 seeking divorce and it was dismissed on 09th May 2013. She further asserted that during trial of the criminal case she always tried for amicable settlement of the matter but her husband did not agree to keep her in his society. 3. In paragraph no. 2(c) of the plaint, the wife has averred as under: “2(c) That, the petitioner has never deserted the respondent rather she has been doing every effort for the restoration of conjugal life and to lead a happy life with the respondent but the respondent did not take any response rather he filed divorce petition on fake and false ground. The petitioner has never withdrawn herself from the society of the respondent as alleged. Both parties were constantly in touch with each other during the stay of the petitioner in Russia where she was completing her Medical Course. The petitioner has never withdrawn herself from the society of the respondent as alleged. Both parties were constantly in touch with each other during the stay of the petitioner in Russia where she was completing her Medical Course. Sooner after her return from Russia in the month of July 2002 the petitioner went to live at her matrimonial house at Sector-8/C, Bokaro and in this duration the respondent used to come at Bokaro and they lived together as husband and wife. It is further submitted that when the respondent went for his private practice and D.N.B. Course to Pune in the month of Feb. 2004 she also went there to live with her husband.” 4. The written statement filed on behalf of the husband questioned maintainability of the suit; the suit being barred by limitation and that no cause of action had arisen for instituting the suit. The husband admitted that he lived with his wife till 24th April 2000 but at the same time pleaded that one week after the marriage her father took her home as she had to go to Kazakhstan for study and thereafter she did not join his company. He further averred in the written statement that after return of his wife from Kazakhstan he tried to take her to Pune where he was working but her father refused to send her. He denied the allegations of demand of dowry and torture and stated that Harla PS Case No. 31 of 2007 was a false case in which he and his family members were acquitted by the Trial Court and the Court of Sessions upheld their acquittal. He denied that he did not call his wife in the marriage of his sister, and that he had on his own withdrawn from the company of his wife without any reasonable cause. In his defence, he narrated few incidents to show that his wife was not at all willing to live with him in the matrimonial home and she did not come for shradh ceremony of his grandmother or even to look after him when he was admitted in ICU for 11 days after a road accident. 5. To show how he was harassed and humiliated by his wife and her father, averments in the written statement filed by the husband run like this: “16. 5. To show how he was harassed and humiliated by his wife and her father, averments in the written statement filed by the husband run like this: “16. That, in the occasion of marriage of younger brother of defendant Manoj Tiwari on 20.2.2007 Tilak was brought by father and relatives of bride, the invitation card was sent to the father of the plaintiff, the request was made on telephone for attending the ceremony and defdt. requested for Bidai of plaintiff for her presence at the time of tilak. But surprisingly enough the plaintiff lodged a false criminal case vide Harla P.S. Case No. 31/07 U/s 498(A)/34 I.P.C and 3/4 of D.P. Act on 20.2.2007 at about 5:30 p.m. Police arrested the defendant while he was engaged in function of tilak of his younger brother Manoj Tiwari in presence of 50 relatives of bride and about 250 invitees of defendant. It was intentionally done for breach of marriage of Manoj Tiwari and lowering down the prestige of the defdts. family. 17. That, the aforesaid case was not lodged against the defendant only but his entire family member was falsely implicated. 18. That, after arrest of defdt. he was brought to Harla P.S and initiative was taken by O/C Harla P.S and Dy. S.P. for settling the differences the plaintiff was also brought to Harla P.S but she refused to talk with defdt. and told that “Train has left platform and passengers to go back.” She scolded the police why other accused persons were not arrested. 19. That, the defendant remained in judicial custody from 21.2.07 to 2.3.07 due to false case brought by plaintiff. The plaintiff never resides together as husband and wife with defdt. after 24.4.2000 and the fact stated in para 2(c) that after return from Russia in July 2002 plaintiff went to live in matrimonial house and defdt. used to come at Bokaro and they lived together as husband and wife is totally false and concocted. It is also false and denied that plaintiff went to Pune where defdt. was in private practice and lived together as husband and wife.” 6. The learned Principal Judge, Family Court, Bokaro framed the following issues in Title Matrimonial Suit No. 230 of 2013: (i) Whether the suit is maintainable in its present form? (ii) Whether the plaintiff/petitioner has valid cause of action for the suit? was in private practice and lived together as husband and wife.” 6. The learned Principal Judge, Family Court, Bokaro framed the following issues in Title Matrimonial Suit No. 230 of 2013: (i) Whether the suit is maintainable in its present form? (ii) Whether the plaintiff/petitioner has valid cause of action for the suit? (iii) Whether the petitioner has been able to prove her case that the respondent has withdrawn himself from the society of the petitioner without any reasonable cause? (iv) Whether the petitioner is entitled to get the relief as prayed for? 7. Both parties laid oral evidence and produced documents which were marked as exhibits during the trial - the wife examined four witnesses while the husband examined three witnesses. 8. Issue No. (iii) was taken up first for determination by the learned Trial Judge who held that: “8.2 After aforesaid discussion of the evidence of both the parties in the light of their respective pleadings, I find that the petitioner has pleaded that her husband/respondent has withdrawn himself from her society without any reasonable cause. Contrary to this, the respondent has also levelled counter allegations by saying that it is the petitioner herself who is not willing to reside with him and she has brought this suit only to harass him. The petitioner and her three witnesses have fully supported the fact that the respondent and his family members ill-treated her and deserted her and ultimately the respondent filed divorce suit to get rid of her but that suit was dismissed. They have further stated that even after best efforts made by the petitioner and her family members as well, the respondent was not ready to keep the petitioner with him and lead a happy conjugal life. Ultimately, after dismissal of the divorce suit she took recourse of law for restitution of her conjugal rights and has brought the instant suit. I have appraised the evidence adduced on behalf of the petitioner and found that she has been able to establish that her husband/respondent has withdrawn himself from her society without any reasonable excuse by adducing reliable evidence. On the other hand, the respondent has examined altogether three witnesses, out of them PW2 is hearsay and PW3 is formal, hence there is sole evidence of the respondent in support of his case. On the other hand, the respondent has examined altogether three witnesses, out of them PW2 is hearsay and PW3 is formal, hence there is sole evidence of the respondent in support of his case. On appreciation of the evidence of the respondent I find that he has not been able to rebut the aforesaid established facts by adducing cogent and trustworthy evidence. Further, as per the statutory mandate of the Explanation appended to Section 9 of Hindu Marriage Act, 1955 when the petitioner has established the aforesaid facts including the fact that it is the respondent who has withdrawn from the conjugal society without any reasonable excuse, the burden of proof shifts upon the respondent to prove that there is reasonable excuse or reason for withdrawing himself from the society of his wife/petitioner. Furthermore, the respondent has not been able to bring any legal ground disentitling the petitioner from the relief of restitution of conjugal rights. No such ground has been pleaded either in the written statement nor any evidence has been adduced on this score by the respondent. Mere levelling counter allegations of desertion by the respondent is not sufficient to refuse the relief of restitution of conjugal rights as prayed for by the petitioner. Therefore, I find that the petitioner has been able to made out a case for restitution of her conjugal rights with the respondent and hence, this issue is decided in favour of the petitioner and against the respondent.” 9. The Family Courts Act, 1984 provides for the establishment of Family Courts with a view to promote conciliation in, and secure speedy settlements of, disputes relating to marriage and family affairs and for matters connected there with. Section 9 of the Family Courts Act provides that in every suit or proceeding an endeavor shall be made by the Family Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist and persuade the parties in arriving at a settlement. 10. First Appeal No. 135 of 2017 was filed on 22nd May 2017 and it came on Board for hearing on 08th November 2017. By an order dated 18th January 2021, I.A. No. 4420 of 2017 which was filed for condonation of delay of 56 days in filing First Appeal No. 135 of 2017 was allowed. 10. First Appeal No. 135 of 2017 was filed on 22nd May 2017 and it came on Board for hearing on 08th November 2017. By an order dated 18th January 2021, I.A. No. 4420 of 2017 which was filed for condonation of delay of 56 days in filing First Appeal No. 135 of 2017 was allowed. By the same order, the parties were directed to explore possibility of an amicable settlement and they were permitted to approach Member Secretary, JHALSA for participating in a mediation exercise. The order dated 10th March 2021 records that the mediation between the parties has failed and, accordingly, First Appeal No. 135 of 2017 was admitted for hearing. 11. Placing reliance on section 23(1)(d) of the Hindu Marriage Act 1955, the learned counsel for the husband contended that there was improper delay in instituting the suit for restitution of conjugal rights. It is contended that according to the plaint averments the cause of action arose on 15th January 2008 when the husband filed Title Matrimonial Suit No. 12 of 2008 for divorce whereas the suit under section 9 of the Hindu Marriage Act for restitution of conjugal rights was filed more than 5 years thereafter but there is no explanation for the delay in filing the suit under section 9. 12. Section 23(1) of the Hindu Marriage Act, 1955 reads as under: “Section 23 - Decree in proceedings: (1) In any proceeding under this Act, whether defended or not, if the court is satisfied that: (a) any of the grounds for granting relief exists and the petitioner [except in cases where the relief is sought by him on the ground specified in sub-clause (a), sub-clause (b) or sub-clause (c) of clause (ii) of Section 5] is not in anyway taking advantage of his or her own wrong or disability for the purpose of such relief. (b) where the ground of the petition is the ground specified in clause (i) of sub-section (1) of Section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty. (bb) when a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or under influence. (bb) when a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or under influence. (c) the petition (not being a petition presented under Section 11) is not presented or prosecuted in collusion with the respondent. (d) there has not been any unnecessary or improper delay in instituting the proceeding. (e) there is no other legal ground why relief should not be granted, then, and in such a case, but not otherwise, the court shall decree such relief accordingly............” 13. We are not inclined to hold that there was improper delay in filing section 9 petition by the wife primarily for the reason that section 23 of the Hindu Marriage Act is not a substantive provision and after repeal of Article 35 of the Limitation Act, 1877 in the Limitation Act, 1908 no period for limitation for filing a suit for restitution of conjugal rights has been provided by the Legislature. We may indicate here that though the wife pleaded that in July 2002 she was ousted from her matrimonial home and her statements that she stayed with her husband for some time at Pune and also in her matrimonial home between 2002 to 2007 do not appear truthful but during the trial of Title Matrimonial Suit No. 230 of 2013 the question of delay in filing section 9 petition was not pressed by the husband nor an issue on this point was framed by the learned Trial Judge. 14. Mr. Mukesh Kumar, the learned counsel for the appellant, contended that before a decree for restitution of conjugal rights is passed under section 9 of the Hindu Marriage Act, 1955, the Court must be satisfied about truth of the statement made by the plaintiff and that the defendant had withdrawn from the society of the plaintiff without any reasonable excuse. Per contra, Mr. Naveen Kumar Jaiswal, the learned counsel for the wife, submitted that in the present case the husband was at fault as he did not take care of his wife and withdrew himself from her society without any reasonable excuse. 15. Per contra, Mr. Naveen Kumar Jaiswal, the learned counsel for the wife, submitted that in the present case the husband was at fault as he did not take care of his wife and withdrew himself from her society without any reasonable excuse. 15. Section 9 of the Hindu Marriage Act, 1955 reads as under: “Section 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.” 16. Every spouse is entitled to the association and companionship of the other. Besides other enactments, section 9 of the Hindu Marriage Act seeks to correct any unreasonable departure from matrimony. Section 9 provides a statutory relief to the aggrieved spouse if the following conditions are satisfied: (i) withdrawal from the society of one spouse by the other. (ii) such withdrawal was without any reasonable cause or excuse. (iii) the Court is satisfied as regards truth of the claim made by the aggrieved spouse. (iv) there is no legal ground for refusal of the relief. 17. The Explanation to section 9 of the Hindu Marriage Act reads as under: “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.” 18. We have carefully examined the evidence laid by both the parties during the trial of Title Matrimonial Suit No. 230 of 2013 and find that the wife failed to produce reliable evidence to show that her husband withdrew himself from her society without any reasonable excuse. The wife, the plaintiff, examined herself as PW1 and stated in her examination-in-chief by way of affidavit that after the marriage she stayed with her husband in the matrimonial home and after she returned from Russia her husband, under the pressure of the family, sent her to her parents place and never brought her back in the matrimonial home. The wife, the plaintiff, examined herself as PW1 and stated in her examination-in-chief by way of affidavit that after the marriage she stayed with her husband in the matrimonial home and after she returned from Russia her husband, under the pressure of the family, sent her to her parents place and never brought her back in the matrimonial home. She was mentally tortured by her husband and in-laws and therefore did not attend the marriage ceremony of his sister-in-law Geeta and finally she lodged a dowry case against her husband and in-laws. In the meantime, she remained in touch with her husband and continued to request him to keep her in his company and that she was still ready to live with him but her husband and his family members were not ready to accept her in the matrimonial home. 19. In the cross-examination, she admitted that she came to her matrimonial home on 18th April 2000 but one week thereafter she was sent to her parents place for further studies in Russia. She stated that in July 2002 she went to her matrimonial home where she stayed for 2-4 days. The reason for this short stay came in her cross-examination wherein she admitted that in July 2002 when she went to her matrimonial home her husband was in private practice at Pune and pursuing D.N.B course. She further stated that between 2002 and 2007 she stayed with her husband in her matrimonial home at Sector-8/C, Bokaro and visited Pune to stay with her husband. From cross-examination of PW1, we gather that her evidence is self-contradictory and does not reflect truthfulness. It is her own case that in the year 2002 her husband was pursuing a course at D.Y Patil College and Hospital, Pune where she stayed for 4-5 days. This is not the case pleaded by her that between 2002 and 2007 her husband was not willing to keep her in his company. Her stand that she stayed with husband at Pune for 4-5 days is difficult to accept because she did not disclose the place (flat number) where she stayed with him and the places where she visited with him. She has even failed to disclose the name of mohalla at Pune where she stayed with her husband. She herself is a doctor and it is reasonably expected from her to remember these details. She has even failed to disclose the name of mohalla at Pune where she stayed with her husband. She herself is a doctor and it is reasonably expected from her to remember these details. She further admitted that she completed her internship from Bokaro General Hospital in the year 2004 and since 2007 she was working there on contract basis. From the statements made by her in the cross-examination, this is apparent that she never sent a letter to her husband at Pune while he was studying and working at Pune. She has also failed to disclose the mobile number of her husband and therefore the stand taken by her that she was in constant touch with her husband is difficult to believe. 20. In her evidence tendered in the Court, the wife failed to disclose material dates when she demanded restitution of conjugal rights and her husband denied the same. We proceed on the premise that evidence of the spouse should not be examined with a microscope and one may not recollect each and every date spent in the matrimony, but, it is necessary for the spouse to plead such facts which are necessary for laying a foundation for a decree of restitution of conjugal rights. Though the wife said that under the pressure of his family her husband sent her to her parents' place and in July 2002 when she came to her matrimonial home at Bokaro where she stayed for 2-4 days she was harassed by her inlaws, her evidence does not effuse truthfulness. These statements have come in her cross-examination when she was put to the defence of the husband that she had refused to join his company at Bokaro and Pune. The outcome of the criminal case lodged by her is another circumstance which tends to make her evidence suspect. The evidence tendered by other witnesses who were examined in support of her case is also vague. 21. The evidence of PW2 is to the effect that his sister stayed in her matrimonial home for 8 days. PW4 who is the father of Dr. Abha Rani also admitted in the cross-examination that his daughter stayed in her matrimonial home for one week. PW3 claimed in the Court that he is an acquaintance of both the families. These witnesses claimed in the Court that Dr. PW4 who is the father of Dr. Abha Rani also admitted in the cross-examination that his daughter stayed in her matrimonial home for one week. PW3 claimed in the Court that he is an acquaintance of both the families. These witnesses claimed in the Court that Dr. Abha Rani was harassed by her husband and his family members and inspite of their repeated efforts her husband refused to keep her in his company. But like PW1, these witnesses also vacillated in the cross examination. There is no consistency in the evidence of these witnesses and, except to the aforesaid extent as indicated in the preceding lines, they do not corroborate the evidence of the plaintiff that she stayed in her matrimonial home for 2-4 days in July 2002 and for 4-5 days with her husband at Pune between 2002 to 2007. We cannot but take note of the fact that the wife has not made any allegation against her husband during her alleged stay at Pune. 22. On the other hand, the husband pleaded a specific case and deposed in the Court that his wife deserted him since 24th April 2000 and after her return from Russia she did not join him in the matrimonial home. He tried to establish contact with his wife but she changed her mobile number and her father did not permit her to live with him at Pune. He was admitted in the hospital for 11 days after he met with an accident on 03rd June 2006 but his wife never visited him nor did she speak to him and his wife refused to participate in the marriage ceremony of his sister and shradh karm of his grandmother. She lodged false case against him and on the occasion of Tilak ceremony of his brother he was arrested in connection to Harla PS Case No. 31 of 2007 and was lodged in jail from 21st February 2007 to 02nd March 2007. The criminal case ended in acquittal and the appeal preferred by his wife was dismissed by the Sessions Court. Due to the criminal case his service was not extended and finally he was constrained to file Title Matrimonial Suit No. 12 of 2008 for divorce. The criminal case ended in acquittal and the appeal preferred by his wife was dismissed by the Sessions Court. Due to the criminal case his service was not extended and finally he was constrained to file Title Matrimonial Suit No. 12 of 2008 for divorce. In the cross-examination, he remained firm on his stand that he lived with his wife for 6 days and after her return from Russia his wife did not stay in his house even for a single day. He denied that his wife stayed with him at Pune in February 2004. 23. In the cross-examination, the husband was put to several questions for which there was no foundation in the pleadings. It is fundamental in law that evidence produced by the parties should be in tune with the pleadings and no amount of evidence which is beyond the pleadings can be looked into by the Court. The object and purpose of pleadings is that the parties go to the trial with clear understanding about the issues involved in the suit and that is the reason all necessary and material facts should be pleaded by the parties in support of the case set up by them and no party is permitted to lead evidence beyond the pleadings. 24. It is not a case set up by the wife that on 04th January 2003 her husband compelled her for abortion and she was admitted in Arti Shulka's Nursing Home; that Rs.1,65,000/- was given at the time of marriage negotiation; that Rs.8,00,000/- and jewelleries were given to the husband at the time of marriage; that the husband stayed with his wife at his native village from October 2004 to February 2005 and in August 2006 in his father's house and; that the wife came to his father's house in November 2014. But the husband was put to question in the cross-examination with reference to the aforesaid facts. All such questions were imaginary without any foundation in the pleading. The aforesaid questions were put to the husband in an effort to show that his wife had been periodically visiting him but this stand of the wife is rather contrary to her plea that her husband had withdrawn himself from her company. 25. All such questions were imaginary without any foundation in the pleading. The aforesaid questions were put to the husband in an effort to show that his wife had been periodically visiting him but this stand of the wife is rather contrary to her plea that her husband had withdrawn himself from her company. 25. Section 155 of the Evidence Act provides that the credit of a witness may be impeached (i) by the evidence of persons who testify that they, from their knowledge of the witness, believe him to be unworthy of credit (ii) by proof that the witness has been bribed and (iii) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted. The evidence tendered by the wife and her witnesses do not indicate anything to arrive at a conclusion that the husband is unworthy of credit and his evidence is liable to be discarded. By all accounts, cross-examination of the husband was not with reference to his examination-in-chief and, as noticed above, there was no foundation laid in the pleadings of the wife on the basis of which the husband was cross-examined. 26. The learned Trial Judge misread the evidence tendered by both parties and arrived at an erroneous conclusion that the wife was able to establish that her husband had withdrawn himself from her society without any reasonable excuse. The test in a civil suit is that of preponderance of probability. The existence of a fact is generally founded on a balance of probabilities and as said by Lord Denning the degree of probability depends on the subject matter. The preponderance of probability is not just a possibility and mere possibility is hardly sufficient to assume that it would have happened. The evidence laid by the wife through herself and three other witnesses does not indicate a positive element and high degree of probability so as to arrive at a conclusion that on preponderance of probability a finding can be recorded that the husband refused to keep his wife in his company without any reasonable or just cause. Having held so, we are unable to accept the finding of the learned Trial Judge that the husband has failed to rebut the facts established by his wife during the trial that he had withdrawn himself from the company of his wife. 27. Having held so, we are unable to accept the finding of the learned Trial Judge that the husband has failed to rebut the facts established by his wife during the trial that he had withdrawn himself from the company of his wife. 27. The explanation to section 9 of the Hindu Marriage Act comes into play where the aggrieved spouse has established by leading cogent and reliable evidence that the other spouse has withdrawn from the conjugal society without any reasonable cause. It is well settled that in a suit the plaintiff stands on his own legs and he cannot take support from the weakness in the case of the defendant. In the first place, the essential conditions under section 9 have to be established by the plaintiff before the defendant is obliged in law to lead evidence in rebuttal. For the sake of fullness, we may indicate that the evidence of the husband seems reliable and we are satisfied as regards its truthfulness. The incidents of refusal and non-cooperation of the wife and registration of criminal case against the husband and his family which were found false by the learned trial Court - appeal as well as revision against the same has failed - would have provided sufficient justification for the husband to stay away from the company of his wife, even where had the wife established a case that her husband has refused to take her in his company. Section 9 itself clarifies that the occasion would have arrived for the husband to lead evidence in rebuttal only after the Court was satisfied about truthfulness of the statement made by the wife. 28. In view of the aforesaid discussions, we hold that the wife is not entitled for a decree of restitution of conjugal rights and, accordingly, the judgment dated 22nd February 2017 and the decree dated 28th February 2017 in Title Matrimonial Suit No. 230 of 2013 are set-aside. 29. Consequently, Title Matrimonial Suit No. 230 of 2013 is dismissed. 30. First Appeal No. 135 of 2017 is allowed.