1. The opponent had filed a petition in the Lower Court under Section 9 of the Hindu Marriage Act for restitution of conjugal rights alleging that the applicant had without reasonable excuse withdrawn from the society of the opponent. The applicant opposed the said petition and filed her written statement alleging inter alia, that she was treated cruelly by the opponent and was driven out of the house and was deserted. On these pleadings, the learned trial Judge initially framed the following issue:
'Whether the petitioner proves that the respondent has withdrawn from the society of the petitioner without reasonable excuse'.
The parties went to trial on this issue and the case was fixed for evidence on 20-12-1967. Before the commencement of the evidence the opponent filed an application for recasting the aforesaid issue and wanted the issue to be framed in these terms:
'Whether the respondent proves that she had reasonable excuse to withdraw from the Society of the petitioner ?'
This application was granted by the learned trial Judge, as according to him, the petitioner-opponent could not prove a negative fact and it was for the applicant - respondent to prove a positive fact, namely, that there was reasonable excuse for her for withdrawing herself from the society of the opponent-petitioner. He thus allowed the application of the opponent and directed the applicant-respondent to prove her case. This order is challenged in this revision application.
2.The application for restitution of conjugal rights has to be made under Section 9 of the Hindu Marriage Act, 1955. It enables either the husband or the wife to make an application for restitution of conjugal rights who alleges that the other party without reasonable excuse has withdrawn from the society of the other. On such an application being made, the Court has to be satisfied of the truth of the statements made in such petition and on further finding that there is no legal ground why the application should not be granted, has to make a decree for restitution of conjugal rights. Sub-section (2) of S. 9 limits the defences to be raised by the other side in answer to a petition for restitution of conjugal rights. These defences are limited to the grounds which can be urged for judicial separation under Section 10, or for nullity of marriage under Section 11, or for divorce under Section 13 of the Hindu Marriage Act. Section 23 enjoins on the Court to pass a decree if the Court is satisfied that any of the grounds for granting the relief exists and the petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief and satisfies the other conditions given in Section 23 and it is only in such a case, the Court can decree the claim, whether the proceeding is defended or not.
3.Ordinarily, when a litigant comes to Court with certain allegations and claims a relief the basis of these allegations, it is for him to substantiate those allegations, before he can get a decree. Normally, therefore, the initial burden is on the plaintiff or the applicant who initiates the proceedings and the evidence given on behalf of the plaintiff or the applicant has then to be rebutted by the opponent. There may be cases where the burden may lie with respect to certain issues on the opponent and then the plaintiff or applicant will have to rebut the evidence given on behalf of the opponent. There may be other cases where the burden may shift from one party to the other from time to time and there may also be cases where the initial burden, however slight it may be, rests on a particular party and then shifts to the opposite party. To me, the test to find out on whom the burden of proof would fail if no evidence is let by other party.
4.To me, it appears that this is a case where the initial burden, however slight, rests on the petitioner who comes to Court. If the petitioner were not to lead any evidence, then the petitioner would not be in a position to get any relief from the Court because the Court has to be satisfied of the truth of the statements in the petition, unless the petitioner leads some evidence to show that the statements made by him are truthful. Section 23 makes it further clear that the Court has to be satisfied that the ground for granting the relief exists and this is so whether the proceeding is defended or not. We may contemplate a case where the petitioner comes to the Court with the allegation that the other party has without reasonable excuse withdrawn from his or her society and the other party is not represented. In such a case without anything more, no decree could be passed in favour of the petitioner because merely by making the allegations in the petition, the Court will not be able to satisfy itself of the truth of the statement made in such application. Some prima facie evidence will have to be given by the petitioner to show, in the first place, that the other side has withdrawn from the society and in the second place, there was no reasonable excuse for the same. No doubt this initial burden, in the first instance, is light in as much as the petitioner has only to show that the other side is not residing with him or her for no fault of his or her and that there was no apparent reason for the other party to withdraw himself or herself from the society of the petitioner. This is the minimum which will have to be established by the petitioner in a case whether the proceeding is defended or not. Unless that is done, there will be no material for the Court to get itself satisfied of the truth of the statements made in the petition. This is why I say that the initial burden will lie on the petitioner and thereafter it will shift to the opponent who shall have to establish that it was for reasonable excuse, which again, may be rebutted by the petitioner. A mere admission by the opponent that he or she is living away from the petitioner would not entitle the petitioner to get a decree straightway, as mere staying away would not amount to withdrawal from the society. In this view the initial burden being on the petitioner, the issue as originally framed putting the initial burden being on the petitioner, the issue as originally framed putting the initial burden on the petitioner was proper and the learned trial Judge was in
error in recasting the issue as proposed by the opponent and throwing the initial burden on the applicant respondent.
5.The order of the lower Court dated 19-12-1967 is, therefore, set aside and the issue as originally framed will be restored and the trial will proceed as if the initial burden was on the petitioner opponent to prove his case. The revision thus succeeds and is allowed. The opponent will pay the costs of the applicant.
6. Revision allowed.