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In a proceeding like this for restitution of conjugal rights brought u/s 9 of the Hindu Marriage Act, 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has brought the proceedings for restitution of conjugal rights made assertion that the wife, the petitioner herein, had withdrawn from his society without any reasonable excuse and that he was therefore entitled to a decree of restitution of conjugal rights.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 cruelty, 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the husband having come to the Court for a judgment and decree in his favour on the assertion that the wife had withdrawn from his society without any reasonable excuse, the burden of proof in the proceedings lies on the husband to prove those statements of assertion made by him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 It provides that when either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply by petition to the Court for restitution of conjugal rights and the Court on being satisfied of the truth 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 law.
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excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.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 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.
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 divorce 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-claim for any relief under this Act on that ground; and if the petitioner’s adultery, cruelty or desertion is proved, 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 CPC 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 evidence 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 fact 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 India (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 AIR 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.
