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F.A. No.172 of 2011 ----[Against the judgment dated 23 September, 2011, decree signed on 14th October, 2011, passed by Sri Satish Chandra Singh, learned Principal Judge, Family court, Jamshedpur in connection with Matrimonial Suit No.121 of 2008] ----Smt. Rita Prajapati @ Rita Kumari, wife of Shri Sanjay Kumar, Daughter of Sri Gopal Pandit, resident of village Sonuwa Railway Station, P.O. & P.S. Sonuwa (Chakradharpur) District Singhbhum West. ………Appellant. -VersusSanjay Kumar, son of Late Moti Ram Kumar, resident of House No.1078, B Block, Kumharpara Sonari, P.O. Sonari, P.S. Town Jamshedpur, District East Singhbhum. ………Respondents. ----For the Appellant : Mr. A. K. Das, Advocate For the Respondent : Mr. Arup Kumar Dey, Advocate ----PRESENT rd

HON’BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON’BLE MR. JUSTICE RAJESH SHANKAR ----By Court: (RAJESH SHANKAR, J.): 1.

The present appeal is directed against the judgment dated 23rd September, 2011, decree signed on 14th October, 2011, passed by Sri Satish Chandra Singh, learned Principal Judge, Family Court, Jamshedpur in connection with Matrimonial Suit No.121 of 2008, whereby the appellant-wife has been directed to restore conjugal life with the respondent-husband within thirty days from the date of the order, failing which the respondent-husband would be at liberty to restore the same through due process of law.

2.

The background of the present appeal is that the respondent filed a matrimonial suit, being Matrimonial Suit No.121 of 2008, in the court of learned Principal Judge, Family Court, Jamshedur under Section 9 of the Hidu Marriage Act, 1955 for restitution of conjugal rights with the appellant. The facts of the case are that both the parties are legally wedded husband and wife and their marriage was solemnized on 12th May, 2006 at

Sonuwa

Railway Station, District

West

Singhbhum, according to Hindu rights and customs. Both the

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parties have been living separately since 12th October, 2007. According to the Respondent-husband, his wife had been staying separately without any reasonable excuse, whereas stand of the Appellant-wife was that her husband used to torture her and wanted to kill her and as such she went back to her father’s house to save her life from the husband. Further case of the appellant was that the respondent never attempted to bring her back and wanted to grab money from her father because she happens to be the sole daughter of her parents. 3.

In support of his case, the respondent examined three witnesses viz. P.W.1-Sanjay Kumar (respondent himself), P.W.2-Tun Tun Singh and P.W.3-Shiv Kumar Singh. On the other hand, the appellant examined two witnesses viz. R.W.1-Aditya Kant Nayak and R.W.2-Gopal Prajapati (father of the appellant). However, the appellant herself was not examined as witness.

4.

Learned court below, while adjudicating the matrimonial suit filed under Section 9 of the Hindu Marriage Act, 1955, framed issues; the major one being “whether the respondent-wife (appellant herein) had withdrawn herself from the society of the petitioner (respondent herein) without any reasonable excuse?”

5.

P.W.1-Sanjay Kumar, while supporting his case, had stated that his marriage with the appellant was solemnized according to Hindu Rites and Customs on 12th May, 2006, but she left the matrimonial home on 12th October, 2007 and went back to her Maike (parental home). He made sincere efforts to bring her back to the matrimonial home, but she refused to come back. P.W.2-Tun Tun Singh, who was known to both the parties, also supported the case of the respondent and stated that since 12th October, 2007, the appellant has been living separately in her Maike and when she was requested by the respondent-husband to come back to the matrimonial home, she completely refused to come back. He also stated that the appellant stayed in her matrimonial home only for one year and five months. He, however, denied the fact that the respondent ever tortured the appellant. P.W.3-Shiv Kumar Singh, who was also known to both the parties, also supported the case of the respondent and stated that the appellant had been staying in her Maike since 12th October,

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2007 and despite the efforts made by the respondent, she refused to come back to the matrimonial home. He also stated that the appellant had stayed in the matrimonial home only for a period of one year and five months. He further stated that the respondent works as a contract labour and denied the fact that the respondent ever tortured the appellant prior to leaving the matrimonial home. On the other hand, R.W.1-Aditya Kant Nayak though led his examination-in-chief through an affidavit, but was not crossexamined by the respondent and the learned court below expunged his evidence. R.W.2-Gopal Parjapati, who is father of the appellant, stated that the marriage between the appellant and the respondent was solemnized on 12th May, 2006 according to Hindu rites and customs. The appellant is his sole daughter, who is affected by Polio since her childhood. He further deposed that the appellant did not want to go back to her Sasural as she had no confidence upon her husband and his family members. He also deposed that the Respondent-husband did not want to keep the appellant with him and has filed the said suit only to save himself from a dowry case, which could have been lodged against him. During his deposition, he also stated that he would never send his daughter to her in-laws house. 6.

Only one document was exhibited on behalf of the respondent, which was a letter issued by the In-charge of Mahila Cell, Jamshedpur, stating the fact that she tried to resolve the issue between the appellant and the respondent, but the appellant did not want to stay with the respondent and on asking, the appellant told her that she wants to get divorce from the respondent.

7.

On the basis of the aforesaid facts stated on behalf of both the parties, it would be important to analyze, as to whether the learned court below properly appreciated the evidence adduced on behalf of both the parties.

8.

It is worth noticing that R.W.1-Aditya Kant Nayak, a neighbour of the appellant, had though led his examination-in-chief before the learned court below on 5th February, 2011 and, thereafter, the case was fixed on 10th March, 2011 for his cross-examination, the same was not done and on 9th May, 2011 the learned court below closed his evidence, as he was not present on that date, under the

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notion that on 20th December, 2010, last opportunity was given to the appellant’s side to adduce evidence. We are of the view that the learned court below has committed an error in relying upon the order dated 20th December, 2010 by which last opportunity was given to the appellant’s side to adduce the evidence, since R.W.1-Aditya Kant Nayak was examined much after the said date i.e. on 5th February, 2011 and the case was running for his crossexamination. The said witness was an important one for proving the case of the appellant, as it would be reflected from his examination-in-chief that he has fully supported the case of the appellant, stating that the appellant had told him that she used to be tortured by the respondent and his family members and they used to insist that the properties of her father should be transferred in their names. He has also stated that the respondent and his family members used to make demand of dowry from the father of the appellant. He was also informed that the respondent was making a plan to administer poison upon the appellant, but somehow she came back to her father’s house at Sonuwa. 9.

The learned court below erroneously closed the evidence of R.W.1-Aditya Kant Nayak and thereby expunged his evidence. By doing so, the learned court below came to an erroneous factual conclusion that the appellant had withdrawn herself from the society of the respondent without any reasonable excuse.

10.

Now it would be appropriate to analyze the provision of Section 9 of the Hindu Marriage Act, 1955. Section 9 of the said Act reads as under:“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.]”

11.

On perusal of the aforesaid section, it will appear that the provision requires that if one of the parties i.e. either the husband or the wife withdraws from the society of the other and that too without any reasonable excuse, then the petition for restitution of

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conjugal rights filed by the other side would be maintainable and once the Court holds that there was no reasonable excuse for withdrawal of one of the parties from the society of the other, it may pass a decree of restitution of conjugal rights accordingly. It is the party withdrawing from the society of the other side who has to prove that there is reasonable excuse for him/her for such withdrawal and the burden of proof would lie on him/her. 12.

However, a wife cannot be compelled to stay with her husband or her in-laws in adverse circumstances, particularly when she has been physically and mentally tortured and has not been properly treated with love and affection by her husband and the in-laws. She has to lead her life in a dignified manner in the house of her in-laws and any kind of willful conduct on the part of the husband or her in-laws, which shakes the confidence of the wife including the fact that her life would be under threat, may be sufficient for her to withdraw from the society of her husband and stay separately.

13.

No doubt, the burden is on the party, who has withdrawn from the society of the other to prove the reasonable excuses, but strict proof of such matter should not always be insisted upon, inasmuch what would be the proper reasonable excuse for a party to withdraw from the society of the other would depend upon the facts and circumstances of each case and no straight jacket formula can be laid down. It may vary from house to house or to person to person. It all depends upon the type of the life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance. In some cases, even a single incident would be sufficient for a party to withdraw from the society of the other. For example, if a wife does not feel safe in the company of her husband and in-laws and her life is in danger and she is physically and mentally tortured in connection with the demand of dowry or the husband brings unfounded allegations against her character or keeps illicit relationship with another lady then the wife would certainly be justified in withdrawing from the company of the husband. These grounds are not exhaustive, but have been given by way of mere illustration.

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14.

In the case of Anil Rishi Vs. Gurbaksh Singh, reported in (2006)5 SCC 558, in Paragraphs-9 and 19, the Hon’ble Supreme Court, while distinguishing the expression between “Burden of Proof” and “Onus of Proof”, has held as under:“9. In terms of the said provision, the burden of proving the fact rests on the party who substantially asserts the affirmative issues and not the party who denies it. The said rule may not be universal in its application and there may be an exception thereto. The learned trial court and the High Court proceeded on the basis that the defendant was in a dominating position and there had been a fiduciary relationship between the parties. The appellant in his written statement denied and disputed the said averments made in the plaint. 19. There is another aspect of the matter which should be borne in mind. A distinction exists between burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is, which party is to begin. 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 others. The elementary rule in Section 101 is inflexible. In terms of Section 102, the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same.”

15.

For proper adjudication of the matter, relevant provisions of Sections 101, 102 and 103 of the Indian Evidence Act and the provision of Order XVIII Rule 1 of the Code of Civil Procedure Code are reproduced herein below:“Indian Evidence Act: 101. Burden of Proof:- Whether desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. 102. On whom burden of proof lies.- The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. 103. Burden of Proof as to particular fact.- The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on a particular person.

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Civil Procedure Code Order XVIII Rule 1 CPC:- Court may grant time and adjourn hearing.(1) The Court may, if sufficient cause is shown The plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contends that either in point of law or on some additional facts alleged by the defendant the plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has the right to begin.”

16.

On the strength of the aforesaid discussions, it is held that the explanation to Section 9 of the Hindu Marriage Act, 1955 does not make any change in the concept of Indian Evidence Act and the Civil Procedure Code and the 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.

17.

The term “Reasonable Excuse” has not been defined under the Hindu Marriage Act, 1955. The aspect concerning “Reasonable Excuse” is a question of fact and each case is to be considered independently to the facts and circumstances of the case. The petitioner by filing an application under Section 9 of the Hindu Marriage Act has to establish the following aspects:(a)

That the respondent has withdrawn from the society of himself/herself; and

(b) 18.

That such withdrawal was without reasonable excuse.

In the case of Saroj Rani Vs. Sudarshan Kumar Chadha, reported in AIR 1984 SC 1562, in Paragraphs-14 and 15, the Hon’ble Supreme Court has held as under:“14. ……It may be mentioned that conjugal rights may be viewed in its proper perspective by keeping in mind the dictionary meaning of the expression “conjugal”. Shorter Oxford English Dictionary, 3rd Edn. Vol.I page 371 notes the meaning of „conjugal‟ as “of or pertaining to marriage or to husband and wife in their relations to each other”. In the Dictionary of English Law, 1959 Edn. At page 453, Earl Jowitt defines „conjugal rights‟ thus: “The right which husband and wife have to each other‟s society and marital intercourse. The suit for restitution of conjugal rights is a matrimonial suit, cognizable in the Divorce Court, which is brought whenever either the husband or the wife lives separate from the other without any sufficient reason; in which case the court will decree restitution of conjugal rights (Matrimonial Cases Act, 1950, S.15), but will not enforce it by attachment, substituting however for attachment, if the wife be the petitioner, an order for periodically payments by the husband to the wife (S.22). Conjugal rights cannot be enforced by the act of either party, and a husband cannot seize and

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detain his wife (1891)(1QB671)”.

by

force

(R.V.

Jackson

15. In India it may be borne in mind that conjugal rights i.e., right of the husband or the wife to the society of the other spouse is not merely creature of the statute. Such a right is inherent in the very institution of marriage itself, see in this connection Mulla‟s Hindu Law15th Edn. P.567-Para 443. There are sufficient safeguards in S.9 to prevent it from being a tyranny. The importance of the concept of conjugal rights can be viewed in the light of Law Commission-71st Report on Hindu Marriage Act, 1955- “Irretrievable Breakdown of Marriage as a Ground of Divorce, Para 6.5 where it is stated thus: “Moreover, the essence of marriage is sharing of common life, a sharing of all the happiness that life has to offer and all the misery that has to be faced in life, an experience of the joy that comes from enjoying, in common things of the matter and of the spirit and from showering love and affection on one‟s of spring. Living together is a symbol of such sharing in all its aspects. Living apart is a symbol indicating the negation of such sharing. It is indicative of a disruption of the essence of marriage- “Breakdown”- and if it continues for a fairly long period, It would indicate destruction of the essence of marriage“irretrievable break down”.”

19.

In the another case of Chetan Dass Vs.Kamla Devi, reported in AIR 2001 Supreme Court 1709, the Hon’ble Supreme Court has held as follows:“Matrimonial matters are matters of delicate human and emotional relationship. It demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with this spouse. The relationship has to conform to the social norms as well. The matrimonial conduct has now come to be governed by statute framed, keeping in view such norms and changed social order. It is sought to be controlled in the interest of the individuals as well as broader prospective, for regulating matrimonial norms for making of a well knit, healthy and not a disturbed and porous society. Institution of marriage occupies an important place and role to play in the society, in general”.

20.

In the present case, since the respondent approached the court below seeking restitution of conjugal rights in his favour on assertion that the appellant had withdrawn herself from his society without any reasonable excuse, the onus of proof lied upon him. The respondent though led evidences through himself as P.W.1, P.W.2-Tun Tun Singh and P.W.3-Shiv Kumar Singh, learned court below has completely erred in not relying on the evidence of R.W.2-Gopal Parjapati (father of the appellant) and has also committed serious error in expunging the evidence of

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R.W.1-Aditya Kant Nayak, who has fully supported the case of the appellant, giving the reasons of her coming back to the parental house, including the fact of threat to her life at the instant of the respondent and his family members. Non-appearance of the appellant as witness in support of her case will not be of any disadvantage to her particularly in view of the fact that R.Ws.1 and 2 have fully supported the case of the appellant, giving proper justification for her “reasonable excuse” in withdrawing from the society

of

her

husband

(respondent

herein).

Moreover,

as

discussed hereinabove, a wife cannot be compelled to stay with her husband or her in-laws under adverse circumstances. 21.

In view of the aforesaid facts and circumstance of the case and the judicial pronouncements discussed hereinabove, we are of the considered view that the impugned judgment and decree suffers from serious infirmity in law and as such, the same cannot be sustained.

Accordingly,

the

impugned

judgment

dated

23.09.2011, decree signed on 14.10.2011, passed by Sri Satish Chandra Singh, learned Principal Judge, Family Court, Jamshedpur in connection with Matrimonial Suit No. 121 of 2008 is not sustainable and the same is, accordingly, set aside. 22.

Resultantly, the instant first appeal stands allowed.

(Shree Chandrashekhar, J.)

(Rajesh Shankar, J.) Jharkhand High Court, Ranchi

Dated, the 16th December, 2016 Sanjay/NAFR