Proceeding for restitution of conjugal rights

In a proceeding like this for restitution of conjugal rightsConjugal Rights Right of a person to sexual intercourse with the marriage partner (Husband/wife). Sexual rights are available to same-sex people. brought u/s 9 of the Hindu Marriage ActHMA Hindu Marriage Act 1955. Conditions for a Hindu marriage (Sec-5). Void marriages (Sec-11) Restitution of conjugal rights (Sec-9). Judicial separation (Sec-10). Divorce ( Sec-13). Divorce by mutual consent (13-B). Maintenance pendente lite (Sec-24). Appeals (Sec-28). Custody of children (Sec-27). Disposal of property (Sec-27) Trial.Evidence. Family Court., by reason of explanation appended to the section, the burden lies on the petitioner herein of proving her case of reasonable excuse for withdrawing from the society of her husband and, therefore, she must begin first. This appears to be wholly erroneous. The respondent herein, i.e., the husband who has brought the proceedings for restitution of conjugal rights made assertion that the wife, the petitioner herein, had withdrawn from his society without any reasonable excuse and that he was therefore entitled to a decree of restitution of conjugal rights. The wife in her objection statement, while refuting these assertions made by her husband, has contended that not only the husband was treating her with crueltyCruelty Physical, mental, social, but he had also driven her out of his house and therefore she had to seek shelter in the house of her parents.

Therefore, the husband having come to the Court for a judgmentJudgment The statement given by the Judge on the grounds of a decree or order - CPC 2(9). It contains a concise statement of the case, points for determination, the decision thereon, and the reasons for such decision - Order 20 Rule 4(2).  Section 354 of CrPC requires that every judgment shall contain points for determination, the decision thereon and the reasons for the decision. Indian Supreme Court Decisions > Law declared by Supreme Court to be binding on all courts (Art 141 Indian Constitution) Civil and judicial authorities to act in aid of the Supreme Court (Art 144) Supreme Court Network On Judiciary – Portal > Denning: “Judges do not speak, as do actors, to please. They do not speak, as do advocates, to persuade. They do not speak, as do historians, to recount the past. They speak to give Judgment. And in their judgments, you will find passages, which are worthy to rank with the greatest literature….” Law Points on Judgment Writing > The judge must write to provide an easy-to-understand analysis of the issues of law and fact which arise for decision. Judgments are primarily meant for those whose cases are decided by judges (State Bank of India and Another Vs Ajay Kumar Sood SC 2022) and decree in his favour on the assertion that the wife had withdrawn from his society without any reasonable excuse, the burden of proofProof Mathematical proof, Direct proof, Proof by contraposition, Proof by contradiction, Proof by construction, Proof by exhaustion, Closed chain inference, Probabilistic proof, Combinatorial proof, Nonconstructive proof, Computer-assisted proofs. in the proceedings lies on the husband to prove those statements of assertion made by him to have a decree in his favour and that is exactly what Section 9 of the Hindu Marriage Act also says. It provides that when either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply by petitionPetition αναφορά > παρακαλώ (Prayer) to the Court for restitution of conjugal rights and the Court on being satisfied of the truthTruth Mathematical 'truth' may not be agreeable with the philosophical 'truth.' A question may be asked on propositional 'truth' on the grounds of physics, that space and time actually don't exist. Vedic injunction Satyam Param Dhimahi, technically Satya is none other than Brahman. For Madhymic Buddhists there is nothing as such to be called 'truth', as all the corresponding facts are only mental projections. Apart from Bio-neuroelectricity nothing exists for Biological Cognition. So-called religious truths are nothing more than a marketing strategy. of the statements made in such petition and there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly. The explanation appended to the said section does not make any change in this position of lawLaw νόμος:  Positive command of sovereign or divine. One can be ruled either by a Statute, a Statue, or a Statement. Legislation is the rule-making process by a political or religious organisation. Physics governs natural law. Logical thinking is a sign of a healthy brain function. Dharma is eternal for Sanatanis. Judiciary > Show me the face, and I will show you the law. Some people know how to bend the law rather than break it. Law Practice. Read a scholarly article.

All that it says is that 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. In other words, when the petitioner, husband or wife as the case may be, adduces proof regarding the withdrawal from the society of another without reasonable excuse, then the burden lies on the other side of proving reasonable excuse, if any, for withdrawal of the society.

The Law :

The Hindu Marriage Act, 1955

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 districtDistrict India has 800 districts under 29 federal states and 8 union territories. Adilabad Agar-Malwa Agra Ahilyanagar Ahmedabad Aizawl Ajmer Akola Alappuzha Aligarh Alipurduar Alirajpur Alluri Sitharama Raju Almora Alwar Ambala Ambedkar Nagar Amethi Amravati Amreli Amritsar Amroha Anakapalli Anand Ananthapuramu Anantnag Anjaw Annamayya Anugul Anuppur Araria Ariyalur Arvalli Arwal Ashoknagar Auraiya Aurangabad Ayodhya Azamgarh Bagalkote Bageshwar Baghpat Bahraich Bajali Baksa Balaghat Balangir Baleshwar Ballari Ballia Balod Balodabazar-Bhatapara Balotra Balrampur Balrampur-Ramanujganj Banas Kantha Banda Bandipora Banka Bankura Banswara Bapatla Bara Banki Baramulla Baran Bareilly Bargarh Barmer Barnala Barpeta Barwani Bastar Basti Bathinda Beawar Beed Begusarai Belagavi Bemetara Bengaluru Rural Bengaluru Urban Betul Bhadohi Bhadradri Kothagudem Bhadrak Bhagalpur Bhandara Bharatpur Bharuch Bhavnagar Bhilwara Bhind Bhiwani Bhojpur Bhopal Bichom Bidar Bijapur Bijnor Bikaner Bilaspur Bilaspur Birbhum Bishnupur Biswanath Bokaro Bongaigaon Botad Boudh Budaun Budgam Bulandshahr Buldhana Bundi Burhanpur Buxar Cachar Central Chamarajanagar Chamba Chamoli Champawat Champhai Chandauli Chandel Chandigarh Chandrapur Changlang Charaideo Charkhi Dadri Chatra Chengalpattu Chennai Chhatarpur Chhatrapati Sambhajinagar Chhindwara Chhotaudepur Chikkaballapura Chikkamagaluru Chirang Chitradurga Chitrakoot Chittoor Chittorgarh Chumoukedima Churachandpur Churu Coimbatore Cooch Behar Cuddalore Cuttack Dadra And Nagar Haveli Dahod Dakshin Bastar Dantewada Dakshin Dinajpur Dakshina Kannada Dhenkanal Dholpur Dhubri Dhule Dibang Valley Dibrugarh Didwana-Kuchaman Dima Hasao Dimapur Dindigul Dindori Diu Doda Dr. B.R. Ambedkar Konaseema Dumka Dungarpur Durg East East Garo Hills East Godavari East Jaintia Hills East Kameng East Khasi Hills East Siang East Singhbum Eastern West Khasi Hills Eluru Ernakulam Erode Etah Etawah Faridabad Faridkot Farrukhabad Fatehabad Fatehgarh Sahib Fatehpur Fazilka Ferozepur Firozabad Gadag Gadchiroli Gajapati Ganderbal Gandhinagar Ganganagar Gangtok Ganjam Garhwa Gariyaband Gaurela-Pendra-Marwahi Gautam Buddha Nagar Gaya Ghaziabad Ghazipur Gir Somnath Giridih Goalpara Godda Golaghat Gomati Gonda Gondia Gopalganj Gorakhpur Gumla Guna Guntur Gurdaspur Gurugram Gwalior Gyalshing Hailakandi Hamirpur Hamirpur Hanumakonda Hanumangarh Hapur Harda Hardoi Haridwar Hassan Hathras Haveri Hazaribagh Hingoli Hisar Hnahthial Hojai Hooghly Hoshiarpur Howrah Hyderabad Idukki Imphal East Imphal West Indore Jabalpur Jagatsinghapur Jagitial Jaipur Jaisalmer Jajapur Jalandhar Jalaun Jalgaon Jalna Jalore Jalpaiguri Jammu Jamnagar Jamtara Jamui Jangoan Janjgir-Champa Jashpur Jaunpur Jayashankar Bhupalapally Jehanabad Jhabua Jhajjar Jhalawar Jhansi Jhargram Jharsuguda Jhunjhunu Jind Jiribam Jodhpur Jogulamba Gadwal Jorhat Junagadh Kabeerdham Kachchh Kaimur (Bhabua) Kaithal Kakching Kakinada Kalaburagi Kalahandi Kalimpong Kallakurichi Kamareddy Kamjong Kamle Kamrup Kamrup Metro Kancheepuram Kandhamal Kangpokpi Kangra Kannauj Kanniyakumari Kannur Kanpur Dehat Kanpur Nagar Kapurthala Karaikal Karauli Karbi Anglong Kargil Karimganj Karimnagar Karnal Karur Kasaragod Kasganj Kathua Daman Damoh Dangs Darbhanga Darjeeling Darrang Datia Dausa Davanagere Deeg Dehradun Deogarh Deoghar Deoria Devbhumi Dwarka Dewas Dhalai Dhamtari Dhanbad Dhar Dharashiv Dharmapuri Dharwad Dhemaji Katihar Katni Kaushambi Kendrapara Kendujhar Keyi Panyor Khagaria Khairagarh-Chhuikhadan-Gandai Khairthal-Tijara Khammam Khandwa (East Nimar) Khargone (West Nimar) Khawzawl Kheda Kheri Khordha Khowai Khunti Kinnaur Kiphire Kishanganj Kishtwar Kodagu Koderma Kohima Kokrajhar Kolar Kolasib Kolhapur Kolkata Kollam Kondagaon Koppal Koraput Korba Korea Kota Kotputli-Behror Kottayam Kozhikode Kra Daadi Krishna Krishnagiri Kulgam Kullu Kumuram Bheem Asifabad Kupwara Kurnool Kurukshetra Kurung Kumey Kushinagar Lahaul And Spiti Lakhimpur Lakhisarai Lakshadweep District Lalitpur Latehar Latur Lawngtlai Leh Ladakh Leparada Lohardaga Lohit Longding Longleng Lower Dibang Valley Lower Siang Lower Subansiri Lucknow Ludhiana Lunglei MAUGANJ Madhepura Madhubani Madurai Mahabubabad Mahabubnagar Mahasamund Mahendragarh Mahesana Mahisagar Mahoba Mahrajganj Maihar Mainpuri Majuli Malappuram Malda Malerkotla Malkangiri Mamit Mancherial Mandi Mandla Mandsaur Mandya Munger Murshidabad Muzaffarnagar Muzaffarpur Mysuru Nabarangpur Nadia Nagaon Nagapattinam Nagarkurnool Nagaur Nagpur Nainital Nalanda Nalbari Nalgonda Namakkal Namchi Namsai Nanded Nandurbar Nandyal Narayanpet Narayanpur Manendragarh-Chirmiri-Bharatpur(M C B) Mangan Mansa Marigaon Mathura Mau Mayiladuthurai Mayurbhanj Medak Medchal Malkajgiri Meerut Meluri Mirzapur Moga Mohla-Manpur-Ambagarh Chouki Mokokchung Mon Moradabad Morbi Morena Mulugu Mumbai Mumbai Suburban Mungeli Narmada Narmadapuram Narsimhapur Nashik Navsari Nawada Nayagarh Neemuch New Delhi Nicobars Nirmal Niuland Niwari Nizamabad Noklak Noney North North 24 Parganas North And Middle Andaman North East North Garo Hills North Goa North Tripura North West Ntr Nuapada Nuh Pakke Kessang Pakur Pakyong Palakkad Palamu Palghar Pali Palnadu Palwal Panch Mahals Panchkula Pandhurna Panipat Panna Papum Pare Parbhani Parvathipuram Manyam Paschim Bardhaman Paschim Medinipur Pashchim Champaran Patan Pathanamthitta Pathankot Patiala Patna Pauri Garhwal Peddapalli Perambalur Peren Phalodi Phek Pherzawl Pilibhit Pithoragarh Poonch Porbandar Prakasam Pratapgarh Pratapgarh Prayagraj Puducherry Pudukkottai Pulwama Pune Purba Bardhaman Ranipet Ratlam Ratnagiri Rayagada Reasi Rewa Rewari Ri Bhoi Rohtak Rohtas Rudraprayag Rupnagar S.A.S Nagar Sabar Kantha Sagar Saharanpur Saharsa Sahebganj Saitual Sakti Salem Salumbar Samastipur Samba Purba Medinipur Purbi Champaran Puri Purnia Purulia Rae Bareli Raichur Raigad Raigarh Raipur Raisen Rajanna Sircilla Rajgarh Rajkot Rajnandgaon Rajouri Rajsamand Ramanagara Ramanathapuram Ramban Ramgarh Rampur Ranchi Ranga Reddy Sambalpur Sambhal Sangareddy Sangli Sangrur Sant Kabir Nagar Saraikela Kharsawan Saran Sarangarh-Bilaigarh Satara Satna Sawai Madhopur Sehore Senapati Seoni Sepahijala Serchhip Shahdara Shahdol Shahid Bhagat Singh Nagar Shahjahanpur Shajapur Shamator Shamli Sheikhpura Sheohar Sheopur Shi Yomi Shimla Shivamogga Shivpuri Shopian Shrawasti Siaha Siang Siddharthnagar Siddipet Sidhi Sikar Simdega Sindhudurg Singrauli Sirmaur Sirohi Sirsa Sitamarhi Sitapur Sivaganga Sivasagar Siwan Solan Solapur Sonbhadra Sonepur Sonipat Sonitpur Soreng South South 24 Parganas South Andamans South East South Garo Hills South Goa South Salmara Mancachar South Tripura South West South West Garo Hills South West Khasi Hills Sri Muktsar Sahib Sri Potti Sriramulu Nellore Sri Sathya Sai Srikakulam Srinagar Sukma Sultanpur Sundargarh Supaul Surajpur Surat Surendranagar Surguja Suryapet Tamenglong Tamulpur Tapi Tarn Taran Tawang Tehri Garhwal Tengnoupal Tenkasi Thane Thanjavur The Nilgiris Theni Thiruvallur Thiruvananthapuram Thiruvarur Thoothukkudi Thoubal Thrissur Tikamgarh Tinsukia Tirap Tiruchirappalli Tirunelveli Tirupathur Tirupati Tiruppur Tiruvannamalai Tonk Tseminyu Tuensang Tumakuru Udaipur Udalguri Udham Singh Nagar Udhampur Udupi Ujjain Ukhrul Warangal Wardha Washim Wayanad West West Garo Hills West Godavari West Jaintia Hills West Kameng West Karbi Anglong West Khasi Hills West Siang West Singhbhum West Tripura Wokha Y.S.R. Yadadri Bhuvanagiri Yadgir Yamunanagar Yavatmal Zunheboto Umaria Una Unakoti Unnao Upper Siang Upper Subansiri Uttar Bastar Kanker Uttar Dinajpur Uttara Kannada Uttarkashi Vadodara Vaishali Valsad Varanasi Vellore Vidisha Vijayanagara Vijayapura Vikarabad Viluppuram Virudhunagar Visakhapatnam Vizianagaram Wanaparthy 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–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.

Relief for respondent in divorceDivorce The lawful thing Allah hates most is divorce. (Abu Dawud) and other proceedings :

In any proceeding for divorce or judicial separation or restitution of conjugal rights, the respondent may not only oppose the relief sought on the ground of petitioner’s adultery, cruelty or desertion, but also make a counter-claimA Claim A claim is “factually unsustainable” where it could be said with confidence before trial that the factual basis for the claim is entirely without substance, which can be the case if it were clear beyond question that the facts pleaded are contradicted by all the documents or other material on which it is based. for any relief under this Act on that ground; and if the petitioner’s adultery, cruelty or desertion is provedProved A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists;, the Court may given to the respondent any relief under this Act to which he or she would have been entitled if he or she had presented a petition seeking such relief on that ground.

The procedure to be adopted at trial is laid down in Order 18 Rule 1 CPCCode of Civil Procedure Main Sections: Filing, Summons, Trial, Judgment, Execution, Appeal, Interim Applications, Interim Injunction, Cost, Notice Rules: Order VII. Statutory Drafting and Forms: General Pleding which says that only where the defendant has admitted some of the averments made in the plaint, then the defendant can be required to lead evidenceEvidence All the means by which a matter of fact, the truth of which is submitted for investigation, is established or disproved. Bharatiya Sakshya (Second) Adhiniyam 2023 first. In this case, no such admission by the respondent in respect of the allegations made by the petitioner that the respondent withdrew from his society without any reasonable excuse. The petitioner cannot contend that he is not required to prove an essential factFact Something तथ्य (In-formation) that truly exists or happens or some-thing that has actual existence. Circumstances: a fact or event that makes a situation the way it is. Indian Evidence Act: It means and includes— (i) anything, state of things, or relation of things, capable of being perceived by the senses; (ii) any mental condition of which any person is conscious. “facts in issue” means and includes any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature or extent of any right, liability or disability, asserted or denied in any suit or proceeding, necessarily follows. constituting his cause of action unless the facts are admitted in the pleadings of the respondent. A fact not admitted in the pleadings of the respondent, the petitioner is bound to prove the essential fact to substantiate his case. In other words, the burden of proving the fact rests on the party who substantially asserts the affirmative of the issue and not the party who denies it.

The right to begin or the privilege of opening the case is decided by Rules of evidence. The general Rule is that the party on whom onus probandi lies should begin. The strict meaning of the term onus probandi is if no evidence is given by the party on whom burden is cast, the issue must be found against him. A distinction exists between burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the earlier stages of a case. It may also assume importance where no evidence at all is led on the question in dispute by either side. Burden of proof is used in three ways (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later (ii) to make that of establishing a proposition as against all counter evidence and (iii) an indiscriminate use in which it may mean either or both of the sides. The elementary rule in Section 101 is inflexible. In terms of Section 102, the initial onus is always on the plaintiff and if he discharge the onus and makes out a case which entitles him to a relief, the onus shift to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same. Followed para-19 of Anil Rishi Vs. Gurbaksh Singh, .

8. Where however evidence has been led by the contesting party, abstract consideration of onus are out of place and truth or otherwise must always be adjudged on the evidence led by the parties. Kalwa Devadattam and Others Vs. The Union of IndiaIndia Hind/ hend >hindia. Bharat Varsha (Jambudvipa used in Mahavamsha) is the name of this land mass. The people of this land are Sanatan Dharmin and they always defeated invaders. Indra (10000 yrs) was the oldest deified King of this land. Manu's jurisprudence enlitened this land. Vedas have been the civilizational literature of this land. Guiding principles of this land are : सत्यं वद । धर्मं चर । स्वाध्यायान्मा प्रमदः । The place also been called Hindusthan in Pesia. The word Hendu is mentioned in Avesta. Read more (UOI) and Others, .

9. It is also open to the plaintiff to say that although he has a right to begin, he may rest content with relying upon the averments made in the written statement and may say that he does not propose to adduce further evidence but the plaintiff should make this statement before the defendant is called upon to adduce evidence. Followed Para-5 of Balakrishna Kar and Another Vs. H.K. Mahatab. In this case the petitioner has not made any statement that he does not propose to adduce further evidence or relying upon the averments made in the counter claim of the respondent.

10. Section 9 of The Hindu Marriage Act, 1955 provides that when either of the spouse, without any reasonable cause withdrawn from the society of the other, the aggrieved party may apply by petition 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. The explanation to the said section speaks that 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. The explanation means that the spouse alleges reasonable excuse has to prove it. I endorse the view expressed by the learned single judge in the case reported in Smt. Jyothi Pai v. P.N. Pratap Kumar Pai AIRAIR All India Reporter 1987 Karnataka 241 that explanation to Section 9 does not make any change and that initial burden to prove the allegation on the basis of which restitution of conjugal rights is sought is on the person who comes to the Court. In this case, the petitioner, who approached the Court for a judgment and decree in his favour on the assertion that the respondent had withdrawn from his society without any reasonable excuse. The burden of proof in the proceedings lies on the petitioner to prove those averments made by him to get a decree in his favour. Hence, the petitioner who alleges withdrawal without reasonable cause failed to lead evidence, he may not be in a position to satisfy the Court regarding the truth in the pleadings, hence, he has to lead evidence, then the burden will be shifted to the respondent to establish reasonable excuse. Even when the respondent made counter claim u/s 23A of the Hindu Marriage Act, it does not make any change in the position of law.