C.P. Sen, J.
1. This is an appeal under Section 28 of the Hindu Marriage Act, 1955 by the husband against the decree for restitution of conjugal rights passed in favour of the respondent wife.
2. The facts not in dispute are that the appellant and the respondent were married according to Hindu rites on 14-6-1974 at village Charua Tahsil Harda. After the marriage, the parties lived in the house of the appellant at Harsud for about one year nO issue was born through the wedlock. About 25 days before the festival of Raksha Bandhan in 1975 the father of the respondent moved an application under Section 97 of the Code of Criminal Procedure, 1973 in the Court of Sub-Divisional Magistrate, Harda for a search warrant for production of the respondent. In pursuance to the search warrant the respondent was brought to the Court of the Sub-Divisional Magistrate where she expressed her desire to go along with her father on 19-8-1975. However, on 25-11-1975 the respondent served a notice on the appellant expressing her desire to live with him if he gave an assurance that he would properly treat her in his house. This notice was refused and so no reply was sent.
3. The contention of the respondent is that after an year of her marriage the appellant and her mother started ill-treating her. Whenever her father or any other relation came to meet the respondent at Harsud to enquire about her well being she was not permitted to see them. This caused tension and anxiety in her mind being an young newly wedded wife. Therefore, at the time of Raksha Bandhan of 1975, she insisted for going to her parents' house at Charua and since then she is living there. After a month thereafter she was brought by her father to the house of the appellant but he refused to keep her with him. Several attempts were made by her father to restore the normal relationship between the parties but all the attempts failed. Consequentlly, a notice dated 25-11-1975 (Ex. p. 1) was sent to the appellant which was refused by him. The respondent, therefore, claimed for restitution of conjugal rights by filing the petition under Section 9 of the Act.
4. The appellant denied the allegations of the respondent and submitted that since after the marriage the respondent used to insist that the appellant should live with her at her father's residence at Charoa, the father of the respondent being a wealthy man. This was also the proposal made by the father of the respondent and the appellant refused to oblige them. Then the respondent started treating the appellant with cruelty so that he may yield to her wishes. The appellant denied any ill-treatment to the respondent by himself or his mother. He further contended that a great humiliation has been caused to him and his family members because of the search warrant proceedings in the Court of Sub-Divisional Magistrate, Harda, taken out by the father of the respondent. The respondent having herself voluntarily withdrawn from the society of the appellant, is not 'entitled for a decree for restitution of conjugal rights.
5. The learned Additional District Judge found that the father of the respondent was not a rich person. On the other hand the appellant was enjoying better financial position. The trial Judge has also accepted the evidence of the respondent's witnesses that she is a simple girl of calm and quiet nature and her father Tarachand is not worldly wise and he Is a very simple man. The trial Judge has also observed the demeanour of this girl and inclined to accept the testimonies of her witnesses. Therefore, the evidence to the contrary given by the appellant's witnesses that she is of irritating nature has not been accepted. The evidence was found to be concocted. The trial Judge also disbelieved the story of the appellant that the respondent and her father insisted on him to stay in the house of the respondent's father at Charua as her father had four more daughters, who were living with him and a son was born thereafter. The father of the respondent was ill-advised to take out a search warrant proceeding under Section 97 of the Code of Criminal Procedure and this has enraged the appellant to start feeling that he has been greatly humiliated at the hands of the respondent and her father. But there has been no suppression of material facts in the petition and in any case the respondent was not liable at all for the ill-conceived steps taken by her father and she made no wild allegations while she was produced before the Magistrate. But on that count alone the appellant is not justified in refusing to keep the respondent with him and resume their co-marital relation. Therefore, a decree for restitution of conjugal rights has been passed.
6. After hearing the parties we are of the opinion that the decree has to be affirmed and it is the appellant who has refused to cohabit with the respondent without any justifiable cause or excuse. It is true that the respondent has herself withdrawn from the society of the appellant because of the ill-advised proceeding taken out by her father under Section 97 of the Code. By Amendment Act No. 68 of 1976, Section 9 of the Act has been amended by deleting Sub-section (2) and adding the following explanation to the Section:
'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.'
Though in the present case the respondent had withdrawn temporarily from the society of the appellant but immediately after one month she voluntarily came to live with the appellant. She was brought to Harsud by her father but the appellant declined to keep her with him. Immediately thereafter she served a notice (Ex. p. 1) on the appellant expressing her desire to live with the appellant provided he gave assurance that she would be properly treated. This notice was refused and not replied. The learned trial Judge tried for reconciliation. As per order-sheet dated 15-9-1976, the respondent expressed her desire to go and live with the appellant from that day. The appellant agreed to take her provided her father makes necessary amends and brings the respondent to his house and leaves her there with due respect to the appellant. The father of the respondent, who was pre-' sent in the Court on that day, stated that he was prepared to keep his cap on the feet of the appellant and would take the respondent to his house. Therefore, a short date was given to comply with his promise. As per order-sheet dated 29-9-1976 the father of the respondent made statement that he had taken the respondent to the house of the appellant but he refused to keep her and abused them. Three documents were filed in support of his statement. The appellant admitted that the respondent was brought to Harsud by her father but they did not come to his house and loitered here and there in Harsud uttering insulting words.
7. Here also we tried for reconciliation and both the parties appeared before us on 16-8-1978. The father of the respondent was present along with the respondent. He offered to touch the feet of the appellant in order that he may forgive him. The respondent also volunteered to go with the appellant immediately, but the appellant was adamant. We gave time till the recess to finally reconsider the offer. In spite of our persistence the appellant refused to keep the respondent with him because of the proceedings under Section 97 of the Code taken out by her father. Relying on Smt. Mango v. Prem Chand (AIR 1962 All 447) and Smt. Surrinder Kaur v. Gurdeep Singh (AIR 1973 Punj 134), the appellant contended that the subsequent events after' the filing of the petition cannot be taken into consideration while deciding this petition. We are unable to agree with this contention. Sub-section (3) of Section 23 added by the Amendment Act No. 68 of 1976 is as under:--
'(3) For the purpose of aiding the Court in bringing about such reconciliation, the Court may, if the parties so desire or if the Court thinks it just and proper so to do, adjourn the proceedings for a reasonable period not exceeding fifteen days and refer the matter to any person named by the parties in this behalf or to any person nominated by the Court if the parties fail to name any person, with directions to report to the court as to whether reconciliation can be and has been effected and the court shall in disposing of the proceeding have due regard to the report.'
Therefore, as per this addition, it is open to this court while disposing of a proceeding under the Act to have due regard to the reconciliation proceedings and the conduct of the parties therein. Therefore, looking to the reconciliation proceeding we have no manner of doubt that it is the appellant who has withdrawn from the society of the respondent without reasonable excuse.
8. There is no legal ground for refusing the decree for restitution of conjugal rights. The temporary withdrawal by the respondent from the society of the appellant did not amount to withdrawal from the society of the appellant. She had no animus to withdraw permanently from the society of her husband. Therefore, the burden was on the appellant to show that he had reasonable excuse for withdrawing from the society which he has miserably failed to do. We are, therefore, satisfied that it is the appellant who without reasonable cause or excuse has withdrawn from the society of the respondent and the decree for restitution of conjugal rights and permanent alimony has been rightly passed.
9. The appeal, therefore, fails and it is dismissed with costs. Counsel's fee Rs. 200/, if certified.