B. C. Varma J. - (1.)The respondent-wife succeeded in the lower Court in resisting the suit filed by the appellant under section 9 of the Hindu Marriage Act, 1955, for restitution of conjugal rights. Her contention that she was being treated cruelty and, therefore she had reasonable excuse to withdraw from the society of the appellant, prevailed with the trial Court. The appellants suit has, therefore, been dismissed.
(2.)The marriage between the parties was performed on 5-6-1975. On the first visit after marriage, the respondent lived with the appellant in the appellant's house for four days. The appellant alleges that, thereafter, the respondent never came to him. On the other hand, the respondent's version is that she thrice went to the appellant and lived for quite a few days with him in his house. The respondent's version in this behalf from the evidence on record. For the purpose of this appeal, therefore, the respondent is held to have lived with the appellant in his house on three different occasions. It is, however, common ground that from the Shravan month of the year of the marriage, i.e , in Aug. 1975, the respondent finally withdraw from the appellant's society, when she left her matrimonial home with his uncle and brother. The appellant tried to get her back. As an attempt in this direction, he even got a search warrant issued for her presence before the Magistrate. She was produced before the Magistrate pursuant to that warrant, but declined to join the appellant and went back to live with her parents. This led to the filing of the suit by the appellant claiming restitution of conjugal rights. The resistance offered to the suit was on the grounds that the respondent was beating the appellant, was not given proper food, was made to work from dawn to dusk and even worked till late hours in the night and was humiliated, because her parents did not fulfil the promise of a gold chain to the appellant. In support of this contention, she examined a few witnesses, including her uncle and brother, besides herself. The appellant examined himself in rebuttal and also supported his version by other oral evidence. As I have stated earlier, the evidence adduced by the respondent commenced herself to the learned District Judge who preferred that evidence to the one adduced by the appellant.
(3.)Having heard the learned counsel for the parties, I have formed an opinion that this appeal must be allowed. It is now well settled that after the amendment of the Hindu Marriage Act by Act No. 68 of 1976, as a result of which an Explanation was added to section 9 of the Act, the burden to prove that there was reasonable excuse for withdrawal from the society of the other spouse is on the spouse who so withdraws from the society of the other. The quantum of proof is not the same as is required however to prove a matrimonial offence based upon cruelty or adultery or the like. The circumstances should be such as may give a good cause for the separating spouse to withdraw from the society of the other.ln case where the withdrawal is sought to be supported on the ground of cruelty, the conduct of the other spouse may be somewhat short of legal cruelty as envisaged under the various provisions of the Hindu Marriage Act. But, the same may be enough to justify separation. However, the circumstances must be grave and weighty and the misbehaviour and the misconduct although may not amount to legal cruelty, may be such as may give a reasonable cause for separation From the evidence on record, in the instant case, I am satisfied that the respondent has not been able to discharge the burden which lay upon her to establish reasonable excuse for her withdrawal from the appellant's society.