"The learned Civil Judge appears to have thought that in a proceeding like this for restitution of conjugal rights brought under 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 societyof 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 rigfhts made assertion that
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."
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IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28/11/2007
CORAM :
THE HONOURABLE MR. JUSTICE A. KULASEKARAN C.R.P. (PD) No.3006 of 2007
and
M.P. No.1 of 2007
P. Rajeshkumar Bagmar .. Petitioner
Versus
Swathi Rajeshkumar Bagmar .. Respondent
Revision under Article 227 of the Constitution of India against the Order dated 05.09.2007 made in O.P. No. 600 of 2001 on the file of Principal Judge, Family Court, Chennai.
For Petitioner : Mr. R. Sundarrajan
For Respondent : Mr. Sugumaran for Mr. M.S. Kandasamy
ORDER
Heard both sides. The facts involved in this case is
that the revision petitioner herein has filed O.P. No. 600
of 2001 on the file of Principal Judge, Family Court,
Chennai against the respondent herein for restitution of
conjugal rights under Section 9 of the Hindu Marriage Act,
hereinafter referred to as Act. The respondent herein has
filed counter claim under Section 23-A of the Hindu Marriage
Act in I.A. No. 228 of 2007 for the relief of dissolution of
marriage. The petitioner had raised a preliminary issue
that the respondent, as a deserted spouse should begin the
case. The court below passed an order dated 05.09.2007
directing the petitioner herein to begin the case, hence,
the present civil revision petition.
2. Mr. Sundarrajan, learned counsel appearing for the
petitioner submitted as follows:
On 17.06.2000, the respondent left the matrimonial
house without intimation and during her stay in her parents
house, she delivered a female child on 07.01.2001. After
the respondent left the matrimonial house, the petitioner
and his parents requested her to come back but she refused
without any valid reasons. Even the panchayats arranged not
yielded any result since the respondent was influenced by
the ill advise of her parents. The act of the respondent in
withdrawing from the petitioner's society without any
reasonable excuse has caused serious matrimonial loss of
discomfort and consortium of the child, hence, the
petitioner was forced to file a petition for restitution of
conjugal rights under Section 9 of the Hindu Marriage Act.
Section 9 of the Act clarifies that burden of proving
reasonable cause for withdrawing from the society shall be
on the person who withdrawn from the society of the other,
while so, directing the petitioner to begin the evidence is
unsustainable in law. When the Petition is filed for
restitution of conjugal rights and the respondent/wife
pleads ill-treatment and cruelty, she should be called upon
to begin the evidence first. In the instant case, the
respondent not only resisted the conjugal rights sought for
by the petitioner but also seeks counter-claim for
dissolution in the same proceedings. As per Order 18 Rule 1
CPC and under Sections 101 to 104 of Evidence Act, she
should have been called upon to begin the evidence. The
decision relied on by the respondent reported in Jyothi
Pai's case (AIR 1987 Karnataka 24) cannot be made
applicable. The court below failed to note the difference
between burden of proof and onus of proof. In support of
this contention, the learned counsel for the petitioner
relied on the below mentioned decisions:-
i) (M/s. Keshavlal Durlabhasinbhai's Firm and another
vs. Shri Jalaram Pulse Mills) AIR 1995 Gujarat 166 wherein a
learned single Judge of the Gujarat High Court held in Para-
9 thus:
"9. In the present case, though this procedure is not followed and though the stage of framing of issues has passed, the trial court has on correct appreciation of the rival contentions of the parties come to a proper conclusion that the defendant should lead the evidence first. This order is perfectly legal and proper and no interference is called for on any of the grounds canvassed by the learned advocate for the petitioner. Though the defendant has chosen to deny the claim of the plaintiff in totality, that is a denial without any substance in view of the other admitted facts of receipt of goods, part payments, issuance of cheques and a claim of having made further payments and, therefore, onus lies on the defendant. The denial of registration of partnership is also prima facie frivolous. The plaintiff has given the registration number of the partnership firm of the plaintiff."
ii) (Ram Narain Prasad vs. Seth Sao) AIR 1979 Patna
174, wherein in Para Nos. 4, 5 and 7, it was held thus:
"4. On a perusal of the above mentioned paragraph in the written statement, it is clear that the case of the defendant was that he had paid the electric charges for the period in question (between Jan., 1972 and Nov., 1972).
5. On these facts, the court below relying on O.18R.1 of the Civil P.C. (hereinafter referred to as the Code) was of opinin that the onus is on the defendant to begin with the case.
7. ....In the present case, the court below directed the defendant to begin with the case for the simple reason that the defendant admitted the facts alleged by the plaintiff and the defendant also pleaded certain additional facts which compelled the Court to direct him (defendant) to begin with the case. In our opinion, the Court below was justified in exercising the discretion.....
....The order simply directs the defendants to begin with the case on the basis of O.18 R.1 of the Code. In our opinion, if the order is allowed to stand, it would not occasion a failure of justice nor cause irreparable injury to the defendant. Hence, we hold that the court below was justified in exercising the jurisdiction which was vested init and we shall not interfere with the impugned order because it does not come within the purview of the proviso to S.115 of the Code."
iii)(Bama vs. Mrs. Rukiyal Bivi) AIR 2004 Madras 243
wherein, I held in Para Nos. 13, 14 and 15 thus:
"13.In a case where the execution of document is admitted, a presumption was raised in favour of the plaintiff that the said document was made for consideration and the presumption was raised, it had the effect of shifting the burden on to the defendant to establish that there was no consideration.
14. The trial court found that the suit was filed even before the expiry of the time stipulated in the agreement and that the balance sale consideration of Rs.1.00 lakh was also deposited into the Court.
15. Considering all the above
said facts, the trial court has rightly come to the conclusion and dismissed the application. Therefore, I do not find any reason to interfere with the order passed by the court below.
iv) Sarkars Civil Court of Practice Procedural Manual
10th Edition - Page No.181
"In case of pleadings by
traversal, it is the plaintiff who is to begin. When in a suit for restitution of conjugal rights by the husband, the defendant wife pleads ill- treatment and cruelty, the defendant should be called to begin (1971) 1 Cut WR 5381. When in a money suit, the defendant admits the claim but comes with a plea of payment, the defendant is to begin the evidence first (AIR 1979 Pat 174).
3. Mr. Sugumar, learned counsel for the respondent
submitted that the petitioner and his family members ill-
treated the respondent and demanded more jewellery, cash
for starting a business, kinetic honda scooter; that the
petitioner stopped the servant maid and extracted all works
from her, with the result, she fell ill; that the
respondent was physically assaulted on 13.06.2000, hence,
she left the matrimonial house on 15.06.2000; that during
the stay of the respondent at her parent's house, she
delivered a female child but the petitioner not even
visited the child except on one occasion in the hospital
that too after persuasion; that the said act of the
petitioner amounts to cruelty, which was a reasonable cause
for her to leave the matrimonial home. When the husband
filed petition for restitution of conjugal rights on
assertion that wife had withdrawn from the society without
any reasonable cause, the burden of proving those averments
of assertion made by the husband lies on him. Explanation
to Section 9 would not make any difference in this
proposition of law. In support of this contention, the
learned counsel for the respondent relied on (Smt. Jyothi
Pai vs. P.N. Pratap Kumar Pai) AIR 1987 Karnataka 241,
wherein a learned single judge of the Karnataka High Court
held in Para No. 2 thus:
"2. The learned Civil Judge appears to have thought that in a proceeding like this for restitution of conjugal rights brought under 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 societyof 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 rigfhts 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 S.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 societyof 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 otherside of proving reasonable excuse, if any, for withdrawal of the society. Here in the case on hand, the husband having come to the Court with a statement of facts asserting that the wife has withdrawn from his society without reasonable excuse, the burden lies on him to prove that statement made by him in the petition, and, therefore, it is for the husband-petitioner in MC No.1/83 to begin the case by opening and adducing the evidence and not the wife.
The learned counsel for the respondent further
submitted that the petitioner seeks restitution of conjugal
rights. In order to get a decree he has to prove that the
respondent has withdrawn from his society and such
withdrawal has been without reasonable excuse. Under
Sections 101, 102 and 103 of the Evidence Act, the burden
of proving the aforesaid two conditions rests on the
petitioner and he has to succeed on the strength of his own
case and cannot take advantage of the weakness of the
defence. In support of this contention, he relied on the
decision (Sadhu Singh Balwant Singh vs. Smt. Jagdish Kaur
Sadhu Singh) AIR 1969 Punjab & Haryana 139 wherein a
learned single Judge held in Para-14 thus:
"14.In order to appreciate the points in controversy, it will be useful to set out the law on the point as contained in Section 9 of the Act. Sub-section (1) indicates that the petitioner seeking restitution of conjugal rights, in order to get a decree, has to prove two things: (i) that the respondent has withdrawn from the society of the petitioner and (ii) that such withdrawal has been without reasonable excuse. The word 'excuse' appears to have been advisedly used. It is something less than "justification", and something more than a mere whim, fad, or brain-wave of the respondent. It is a fact which has to be determined with reference to the respondent's state of mind in the particular circumstances of each case. The scope of the word 'excuse' is not restricted to the grounds which under sub-section (2) of the section can be taken in answer to a petition for restitution of conjugal rights, because in view of Sections 101, 102 and 103 of the Evidence Act, the burden of proving the aforesaid twin conditions in sub- section (1) rests on the petitioner. He has to succeed on the strength of his own case. He cannot take advantage of the weakness of the defence.
The learned counsel for the respondent further
submitted that in the present case, the petitioner has
brought the proceedings for restitution of conjugal rights
on the false ground that the respondent withdrawn from his
society without any reasonable cause, hence, the court
below placed the initial onus of proof on the petitioner to
prove the said allegation as the right to begin follows
onus probandi. To substantiate this contention, he relied
on the decision of the Honourable Supreme Court reported
in(Anil Rishi vs. Gurbaksh Singh) (2006) 5 Supreme Court
Cases 558 wherein the Honourable Supreme Court, in Para
Nos. 9 and 19 held thus:
"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.
4. This Court carefully considered the argument of
the counsel on both sides, the citations relied on by them,
perused the pleadings of the parties and the relevant
provisions of law. Now, we look into the relevant
provisions of 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.
23-A. 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, crueltyor 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."
Indian Evidence Act:
101.Burden of Proof:- Whoever 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."
Civil Procedure Code
Order XVII Rule 1 CPC:- Right to begin.- 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.
5. In the case on hand, the proceedings is brought in
by the petitioner complaining of the respondent herein
without any reasonable excuse withdrew from his society
where the defence of the respondent in her counter-claim is
the petitioner herein treated her with cruelty, demanded
dowry and beaten her, with the result, she was forced to
leave the matrimonial house, hence, she is entitled to
dissolution of marriage.
6. 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.
7. 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) (2006) 5 Supreme Court Cases 558.
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. Union of India and others) AIR 1964 SC 880.
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) AIR 1954 Orissa 191. 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 vs. 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 under
Section 23-A of the Hindu Marriage Act, it does not make
any change in the position of law.
11. The citations have been made by the counsel for
the petitioner from the text books that respondent has to
begin the evidence is not quite relevant to the case on
hand.
12. In view of the reasons mentioned above, this Court
is of the view that the conclusion arrived at by the trial
court that the petitioner herein, who brought in the
proceedings has to lead evidence first to prove the
averment in his O.P. is perfectly valid and interference of
this Court is not warranted. The Civil Revision Petition
is dismissed with costs of Rs.5,000/-.
rsh
To
The Principal Judge
Family Court
Chennai.
A. KULASEKARAN, J
Today, after pronouncing
the order in the above
revision petition in the open
court, the learned counsel for
the petitioner prayed that the
litigants are husband and wife
and hence, Rs.5,000/- ordered
towards costs payable by the
petitioner may be modified to
pay the costs of the revision.
2. Considering the said
submission of the counsel for
the petitioner, Rs.5,000/-
ordered towards costs by this
Court is hereby modified into
one to pay the costs of the
revision petition by the
petitioner to the respondent.
In other respect, the order
dated 28.11.2007 passed in the
above civil revision petition
stand unaltered.
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