Report No. 59
4.10. Section 9(1)-Burden of proof.-
There seems to be some controversy as to whether the burden of proof of "reasonable excuse", mentioned in section 9(1), is on the party against whom the petition is made, or, whether the absence of such excuse is for the petitioner to prove. In a Delhi case,1 it has been stated that for the success of the petition, the petitioner must prove three things,-namely, first, the absence of reasonable excuse for withdrawal from society, secondly, the absence of any legal ground why the petition should not be granted, and, thirdly, the truth of the statements contained in the petition.
However, it seems to have been the view of the Punjab High Court2 that the burden of proving reasonable excuse for staying away is on the person opposing the petition. This also seems to be the Madhya Pradesh view.3 In the circumstances, a clarification is desirable in this regard. Under the corresponding section in the Indian Divorce Act4, it is for the respondent to prove the existence of a reasonable excuse5. This seems to have been the English law also,6 so long as the action for restitution was allowed. [The action has recently been abolished7].
1. Shanti Devi v. Balwant Singh, AIR 1971 Del 294 (296), para. 12.
2. Hardip Singh v. Dalip Kaur, AIR 1970 P&H 284 (285), para. 5 (CD Suri J.).
3. Anna Sahib v. Tara Bai, AIR 1970 MP 36.
4. Section 33, Indian Divorce Act, 1869.
5. Wadia v. Wadia, 1914 ILR 38 Bom 125 (130).
6. Cf. Green v. Green, 1916 Probate 188 (191) (Shearman J.).
7. Section 20, Matrimonial Proceedings and Property Act, 1970 (Eng.).
4.11. Since, ordinarily, the presence of a "reasonable excuse" would be more within the knowledge of the respondent,1 than the absence thereof could be within the knowledge of the petitioner, it would not be unfair to provide that the respondent should prove its existence. It may be difficult for the petitioner to prove the negative.
1. Cf. section 106, Evidence Act.
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