DALELA, J. - (1.) THE wife appellant, who was non- petitioner before the lower Court has preferred this appeal against the order dated 29. 6. 1992 passed by the learned Judge, Family Court, Jodhpur, whereby a decree for restitution of conjugal rights has been passed against the appellant.
(2.) THE husband-respondent had filed an application for restitution of conjugal rights against his wife, the appellant in the Family Court, Jodhpur. It seems that the lower Court has tried to effect reconciliation between the parties and the reconciliation failed. THE lower Court decided the matter 'on the basis of the evidence produced by both the sides and by its order dated 29. 6. 1992 the learned lower Court passed a decree of restitution of conjugal rights against the appellant directing her to go to the matrimonial home and lead married life with the husband. Against the order this appeal has been preferred by the wife. We have heard the arguments of the learned counsel for the appellant. The learned counsel for the respondent has not appeared. Admittedly the appellant has withdrawn of the society of her husband. The onus therefore, lies on her to prove that there has been reasonable excuses for leaving the society of her husband. We have carefully gone through the evidence produced by both the sides before the Family Court. N. A. W. l is the appellant. She has specifically stated that she does not want to live with her husband Anand. The contention of the appellant is that her husband is under the influence of Smt. Dheera and her daughter Prerna and it is on account of these ladies her matrimonial home has been ruined. But in the cross-examination the appellant as N. A. W. l has stated that she would not live with her husband even if he does not keep any relation with Smt. Dheera. Thus on the statement of the appellant given before the Family Court as N. A. W. l it is quite evident that she is not prepared to reside with her husband even though her husband may severe his so called relationship with Smt. Dheera and her daughter. Thus the wife's refusal that she will not live with the husband in any case is not justified. In our opinion, where the wife makes certain allegations against her husband but states that she would not live with her husband even if the allegations made against her husband are rectified. The wife's refusal is not justified and husband is entitled for a decree of restitution of conjugal rights under section 9 of the Hindu Marriage Act.
(3.) THE appellant has averred that her husband is under the influence and ill-advice of other ladies Smt. Dheera and her daughter and she was ill treated by him and as such her withdrawal from the society of her husband is not without reasonable excuse. She has examined three witnesses including herself. She is N. A. W. 1, her other witnesses are N. A. W. 2 Prahlad and N. A. W. 3 Ganpat. N. A. W. 2 has stated that the appellant has been residing separately from her husband from the last 3-1/2 years and when he asked her as to what was the matter then she replied that she had a quarrel with her husband, who had beaten her. This witness has no where stated that Smt. Gayatri-appellant informed him that her husband is under the influence and ill-advice of Smt. Dheera and her daughter. THE silence of N. A. W. 3 in this behalf shows that N. A. W. 3 has not lent support to the averments of the appellant that her husband is under the influence of other ladies and, therefore, maltreated her. N. A. W. 3 has stated that the appellant's husband Anand has made another woman his sister and he roams about with her daughter. He has stated that he did not restrain the appellant from going to her husband but it is she who does not want to go to her husband. From the evidence of N. A. W. 3 what is evident is only that the husband of the appellant has taken another lady as his sister, but that does not mean that he is under her influence and the appellant is ill-treated on that account. In our opinion, the evidence of N. A. W. 3 does not sufficiently prove that the appellant's husband is under the influence and ill-advice of another lady and the appellant is ill-treated on that account. THE evidence of N. A. W. 3, therefore, does not sufficiently proves the averments of the appellant. A p&rusal of the evidence of appellant as N. A. W. 1 would show that her grievance against her husband is that he does not give due weight to what is said by her and gives more weight to what is said by Smt. Dheera. In cross-examination N. A. W. 1 has stated that even if her husband severs his relationship with Smt. Dheera and he keeps her (appellant) in a separate house she would not live with him. In our opinion the evidence of N. A. W. 1 is not sufficient to show that her husband is keeping another woman or is under another woman's influence and/or ill-advice and that she (appellant) was ill-treated by her husband. THE wife's evidence to her plea is not sufficient and her evidence does not inspire confidence so far as the stand which she had taken. In view of this matter, we are of the opinion that there is no reasonable cause for the wife which may justify her refusal to marital obligation to her husband. In our opinion, there is no sufficient evidence on record to show that the appellant's husband keeps another woman or he is cruel to his wife. We, therefore, think that she is not justified to refuse the marital obligation to her husband. In Nirmala vs. Gauri Shanker (1), in reply to a case of restitution of conjugal rights by the husband, the wife resisted the petitioner and stated that her husband has taken another woman and she was ill-treated by him and admitted the factum of separation. The wife's evidence to her plea was not found sufficient. It was then held that there was no reasonable cause for the wife which may justify the refusal to her marital obligation to her husband and the husband was held to be entitled for a decree of restitution of conjugal rights under section 9 of the Hindu Marriage Act. On a careful consideration to the evidence on record, we find that the appellant has withdrawn from the society of her husband without reasonable excuse and she has not been able to discharge the onus of proving the reasonable excuse for withdrawal under Explanation to section 9 of the said Act. Therefore, the husband-respondent is entitled for a decree of restitution of conjugal rights under Section 9 of the Act. We consider that there is no infirmity legal or factual in the order of the learned lower Court, which deserves to the upheld and the appeal has no force as per law. ;