The legal burden is upon the petitioning spouse to establish by convincing evidence beyond any reasonable doubt that the respondent abandoned him or her without reasonable cause. The petitioner must also prove that there was desertion throughout the statutory period and there was no bona fide attempt on the respondent’s part to return to the matrimonial home and that the petitioner did not prevent the other spouse by his or her action by word or conduct from cohabitation. The expression “wilful neglect” included in the section does not introduce a new concept in Indian law unknown to the English law, but is only an affirmation of the doctrine of constructive desertion. The said doctrine is not rigid but elastic and without doing violence to the principles governing it, it can be applied to the peculiar situations that arise in an Indian society and home. No inspiration could be derived from S. 9 of the act in order to construe the scope of the expression “without reasonable cause” and whether there is a reasonable cause or not is a question of fact to be decided on the facts of each case.
Hindu Marriage Act
I worship Shankar in the from of Fire God, the God of good repute and the protector of husband. May by the grace of Shankar, the Fire God. I and my husband be free from death as the ripe melon is freed from its knot in the creeper. With His grace may I never be separated from my husband’s house.
Hindu Law—marriage—Second marriage—Polygamy—Permissibility—The polygamy is not permissible, though the second marriage during the life time of first wife was permissible in restricted circumstances—Abuse of this restricted practice resulted in restriction on remarriage imposed by the legislature.
The burden of proving desertion—the “factum” as well as the “animus deserendi”—is on the petitioner; and he or she has to establish beyond reasonable doubt, to the satisfaction of the Court, the desertion throughout the entire period of two years before the petition as well as that such desertion was without just cause. In other words, even if the wife, where she is the deserting spouse, does not prove just cause for her living apart, the petitioner-husband has still to satisfy the Court that the desertion was without just cause.
I am also of opinion that for the purpose of her remarriage, the widow should be taken to be of the gotra of her father.
Section 9 of The Hindu Marriage Act, 1955 provides that when either of the spouse, without any reasonable cause withdrawn from the society of the other, the aggrieved party may apply by petition for restitution of conjugal rights and the Court on being satisfied of the truth of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.
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