Kan Singh, J. - (1.) THIS is a wife's appeal against the judgment of the learned District Judge Aimer dated 14 -5 -70 dismissing her application for restitution of conjugal right against her husband under, Section 9(1) of the Hindu Marriage Act, 1955, hereinafter to be referred as the Act
(2.) THE wife averred that she was married to the husband at Nasirabad on 4 -12 -61 according to the Hindu rites. After the marriage the couple lived happily till October, 1967. The wife proceeded to say that her husband had fumed he out of the matrimonial home after giving her a severe beating. According to her, the husband was in desertion without any reasonable excuse. The responded -husband traversed the averments in the wife's petition. He stand that it was the wife who had deserted him and she was being kept back at Nasirabad by her parents and had not come to him even though he had gone to fetch her The learned District Judge framed one issue namely whether the respondent had withdrawn from the society of the petitioner as alleged in para 3 of the petition. Once or twice the parties took adjournments for reconciliation but eventually on 9.5.70 both the learned Counsels stated that none of them wanted to adduce any evidence. Accordingly the learned District Judge set down the case for arguments and on 14 -5 -70 dismissed the wife s petition under Section 9 of the Act. Learned Counsel for the wife - appellant has assailed the judgment of the learned District Judge. He contends that in accordance with Section 20 of the Act whatever was contained in the wife's petition should have been treated as evidence in the case and in that the husband had admitted the marriage the relief prayed for namely, restitution of conjugal rights should have been granted to the wife. Learned Counsel maintains that since the two spouses were living separately and the husband had not shown any reasonable excuse for denial of conjugal rights to the wife, the petition should have been allowed and a decree passed in favour of the wile.
(3.) I may read Section 20 of the Act: Section 20 Contents and verification of petitions. - -(1) Every petition presented under this Act shall state as distinctly as the nature of the case permits the facts on which the claim to relief is founded and shall also state that there is no collusion between the petitioner & the other party to the marriage; (2) The statements contained in every petition under this Act shall be verified by the petitioner or some other competent person in the manner required by law for the verification of plaints, and may, at the hearing be referred to as evidence. Sub -section (2) of Section 20 contains a special rule of evidence for treating the statements contained in a petition under this Act as evidence at the hearing of the case but it is discretionary. The discretion has to be exercised sparingly & with caution in special & extraordinary situations. The situation of the trial court was not attracted to this provision otherwise it would have made certain observations regarding it. Nevertheless I have considered the submission. Here is a case where in the petition the wife has alleged that the husband had deserted her and had turned her out of the house after giving her a beating (vide para -2 of the petition). In para -2 of the reply the husband has denied the averments contained in para -2 of the petition & has, on the other hand, stated that he had gone to fetch the wife, but she was not coming and her father was not sending her. In such a case, therefore, it cannot be said that the statements contained in wife's petition should have been read as evidence in the case in the absence of there being any other evidence. Whatever was asserted by the wife was denied by the husband and in the absence of any other evidence the denial of the husband would be a counterpoise against what the wife had stated in the petition. I, therefore, do not find any substance in the contention of the learned Counsel.;