1. These are connected appeals which are filed from the common order passed by the learned District judge, Ernakulam dated 31-7-1986. The appeals are filed by the wife the respondent in O.P (Divorce) No. 253 of 1985 and the petitioner in O.P. (Divorce) No. 293 of 1985. The common respondent in these appeals is the husband of the appellant. They were married at the St. George Church, Kaninadu on 28-10-1979. They lived together as husband and wife till 25-3-1980. The parties are Christians. The husband alleged that the wife left his house on 25-3-1980 and thereafter never returned despite several requests therefor. He sent registered letters requesting the wife to come and stay with him. It was not acceded to. He. thereupon, filed O.P. (Divorce) No. 253 of 1985 for restitution of conjugal rights. The said petition was contested by the appellant herein (wife). She stated that the behavioural pattern of her husband towards her was harsh and cruel. Stating that she was treated with cruelty and that she is seeking a decree for judicial separation, various aspects of the conduct and behaviour of her husband which include a few incidents to the effect that she was beaten and manhandled by her husband, were highlighted in the objections. She resisted the prayer for restitution of conjugal rights sought by her husband on the ground that the husband was behaving cruelly towards her and so in the circumstances it is not possible to reside, with him. On the same day, when the appellant herein (wife) entered defence in the petition filed by her husband (O.P. No. 253 of 1985), she filed O.P. 293 of 1985 seeking a decree for judicial separation against her husband. The petition filed by the husband was one under S.32 and 33 f the Indian Divorce Act. The petition filed by the wife was one under S.22 and 23 of the Indian Divorce Act, on. the very same allegations set forth in her defence or counter to the petition filed by the husband (O.P. No. 253 of 1985).

2. Both the petitions were tried together. O.P. No. 293 of 1985 was treated as the main proceeding wherein evidence was recorded. The learned District judge, after an elaborate consideration of the evidence, came to the conclusion that the wife (Appellant) failed to establish that she has been treated cruelly by her husband in order to enable her to claim a decree for judicial separation or successfully resist the claim made by the husband for a decree for restitution of conjugal rights. In this view, the petition filed by her, O.P. No. 293 of 1985, was dismissed. The petition filed by the husband (O.P. No. 253 of 1985) was allowed. A decree against the appellant herein (wife) for restitution of conjugal rights was passed. Aggrieved by the common order passed by the learned District judge dated 31-7-1986, the respondent in O.P. No. 253 of 1985 and the petitioner in O. P. No. 293 of 1985 (wife) has come up in appeals.

3. We heard counsel for the appellant, Mr. M.R. Parameswaran, as also counsel for the common respondent, Mr. P. George William. The entire evidence in the case was read over to us. An array of authorities decided under the analogous provision of the Hindu Marriage Act (S. 9 before the amendment in 1976) as also the relevant provisions in the Indian Divorce Act were placed before us. In order to appreciate the question posed before us for consideration, it will be useful to extract S.22 and 23 of the Indian Divorce Act, 1869 which deals with judicial separation, as also S.32 and 33 of the Indian Divorce Act which deals with "restitution of conjugal rights."

"22. Bar to decree for divorce a mensa et toro but judicial separation obtainable by husband or wife. No decree shall hereafter be made a divorce a mensa et toro but the husband or wife may obtain a decree of judicial separation on the ground of adultery or cruelty or desertion without reasonable excuse for two years or upwards and such decree shall have the effect of a divorce a mensa et toro under the existing law and such other legal effect as hereinafter mentioned.

23. Application for separation made by petition. Application for judicial separation on any one of the grounds aforesaid may be made by either husband or wife by petition to the District Court or the High Court 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 judicial separation accordingly.

32. Petition for restitution of conjugal rights. When either the husband or the wife has, without reasonable excuse, withdrawn from the. society of the other, either wife or husband may apply by petition to the District Court or the High 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.

33. Answer to Petition. Nothing shall be pleaded in answer to a petition for restitution of conjugal rights which would not be ground for a suit for judicial separation or for a decree of nullity of marriage."

It will be noticed that the defence to an action for restitution of conjugal rights, is the reason or ground for obtaining judicial separation. (See S.33 and 22).

4. Appellants counsel attacked the judgment of the court below by stating that the approach and conclusion of the learned District judge in the instant case is erroneous. It was argued that the learned Dist. judge was in error in assuming that once a case for judicial separation is not made out by the appellant, a decree against her for restitution of conjugal rights will automatically follow. It was argued that though S.33 of the Act envisages the defences which can be put forward in a petition instituted for restitution of conjugal rights, which are grounds for obtaining judicial separation, it does not follow that the failure to establish the grounds taken in defence envisaged under S.33 of the Act necessary to obtain judicial separation, will ipso facto enable the petitioner who initiated the action under S.32 of the Act to obtain the order for restitution of conjugal rights. Counsel forcibly stressed that in order to successfully sustain a petition filed under S.32 of the Act the petitioner should establish that the respondent has withdrawn from the society of the other without "reasonable excuse". Even if the respondent fails to successfully substantiate the defences pleaded under S.33 of the Act, still the Court has got discretion to refuse to grant the prayer for restitution of conjugal rights, if it is satisfied that the withdrawal from the society by the other is, with "reasonable excuse". This aspect was not borne in mind by the Dist. judge in decreeing the petition filed by the husband praying for restitution of conjugal rights. Counsel also pleaded that on the basis of the evidence in the case the learned District judge was in error in holding that the appellant failed to establish a case for judicial separation. On the other hand, counsel for the respondent argued that in an action initiated under S.32 of the Act, the pleas open to the respondent are stated in S.33 of the Act and once the said pleas are not established or substantiated, the petition filed under S.32 of the Act for restitution of conjugal rights should succeed. It was also argued that the learned District judge, for weighty reasons, found that the appellant failed to substantiate the plea that she is entitled to a decree for judicial separation and in such circumstances it is idle for her to resist the action for restitution of conjugal rights.

5. In elucidating their respective legal position contended by counsel, we were referred to a number of authorities which were rendered under S.9 of the Hindu Marriage Act before its amendment by S.3 of the Marriage Laws (Amendment) Act, 1976, whereby sub-s. (2) of S.9 was deleted and an explanation was added. The crucial question that will fall for consideration is whether the respondent in an action under S.32, can succeed only if the defences specified in S.33 of the Act are established or in other words is it open to the Court to negative the prayer for restitution of conjugal rights even if the respondent fails to substantiate the pleas or defences specified in S.33 of the Act

6. We are of the view that S.32 and 33 of the Act should be read together. Even though the defences envisaged by S.33 of the Act are not proved, yet the Court should consider whether the petitioning spouse has proved that there is no "reasonable excuse" for withdrawal from the society by the other. It is for the Court to consider whether it will be inhuman to gram the decree. The court has discretion in the matter. It may be that the defence set up may fall short of establishing the grant of a decree for judicial separation but the absence of proof in that behalf or the failure to establish the defence set up, as envisaged by S.33 of the Act, will not ipso facto entitle the petitioner in an action under S.32 of the Act to succeed. It is for the petitioner to allege and prove that the respondent withdrew from the society of the petitioner without any reasonable cause. In many cases, the conduct which falls short of legal cruelty, may justify one spouse in leaving another, provided it is grave and of convincing character. It is true that any defence or any excuse falling under S.33 of the Act would certainly be a "reasonable excuse" for the respondent, but there may be other excuses which may be considered even though they may not fall under S.33 of the Act. The scope of the expression "reasonable excuse" occurring in S.32, is not restricted to the grounds or defence specified in S.33 of the Act, for answering a petition for restitution of conjugal rights. Excuses other than the one envisaged by S.33 of the Act can also be relied on by the Court in refusing the relief under S.32 of the Act. Reading S.32 and 33 of the Act together, we hold that it is for the petitioning spouse to allege and prove that the other party has without reasonable excuse withdrawn from the society of the petitioning spouse. The burden of proof is entirely on the petitioner. This is a condition precedent to be established in order to succeed in an action under S.32 of the Act. The petitioner in the action can succeed only on the strength of his own case and not on the weakness of the defence set up. Till the petitioning spouse establishes the crucial or vital factor, that the other spouse has without reasonable excuse withdrawn from the society of the petitioner, the stage is not reached for the other party to enter upon his/her defence. Before the stage of defence is reached, it is for the petitioner in the action to establish his case. The above view is substantially in accord with the decisions of the Madhya Pradesh, Punjab, Rajasthan, Gujarat, Delhi and Madras High Courts. (See-Gurdev Kaur v. Sarwan Singh AIR 1959 Punjab 162; Gurcharan Singh v. Smt. Waryam Kaur AIR 1960 Punjab 422; Shakuntalabai v. Baburao AIR 1963 M.P.10; Anna Saheb v. Tarabai AIR 1970 M. P. 36; Konna v. Krishnaswami AIR 1972 Madras 247; P. S. Ramarao v. P. R. Krishnamani Ammal AIR 1973 Madras 279; Ambujam v. T.S. Ramaswamy AIR 1973 Delhi 46; Kanchangauri v. Chandulal AIR-1973 Gujarat 275 and Satya Devi v. Ajaib Singh AIR 1973 Rajasthan 20). The contra view supported by the decisions of the Andhra Pradesh, Himachal Pradesh and Mysore High Courts, do not commend themselves to us. (See Annapurnamma v. Appa Rao AIR 1963 A. P. 312; Mst. Premi v. Daya Ram AIR 1965 H. P. 15; Revanna v. Suseelamma AIR. 1967 Mysore 165 and K. Ramoki v. K. Rameswari AIR 1975 A. P. 3).

7. As stated, it is for the petitioning spouse to allege and prove that the other spouse has without reasonable excuse withdrawn from the society. The onus is on the party asserting the same. What is "reasonable excuse" depends upon the facts and circumstances of each case. "Reasonable excuse" should be "just excuse" or "rational excuse". It must be sufficiently weighty and convincing. It should be more than a mere whim. It need not be one of the grounds falling under S.33 of the Act. It can even be distinct from the matrimonial offence envisaged by S.33 of the Act. All the same, "reasonable excuse" means that it should be in accord with reason, just and fair, in all the facts and circumstances of the case. Tested in the touch-stone of the aforesaid legal principles, we are satisfied that the learned District judge totally made a wrong approach to the question, in the instant case. The learned District judge held that the appellant failed to establish the cruelty. pleaded by her and so she will be disentitled to get a decree for judicial separation. On this basis, the District judge, without further discussion, automatically concluded that the wife cannot resist the claim made by the husband for restitution of conjugal rights. This is patently a wrong approach. In other words, the learned Dist. judge failed to bear in mind that even if the appellant (wife) failed to establish the case set up by her enabling her to get a decree for judicial separation, it will not ipso facto or without anything more enable the husband to get a decree for restitution of conjugal rights under S.32 of the Act. The learned District judge in granting a decree for restitution of conjugal rights, acted mechanically and without applying his mind to the essential ingredients envisaged by S.32 of the Act. In this respect, we have to hold that the decree granted in O. P. No. 253 of 1985 deserves to be set aside. We do so. M. F. A. No. 693 of 1986 should stand allowed. O. P. No. 253 of 1985 is remitted to the court below for disposal afresh in accordance with law.

8. We shall now deal with M.F.A. No. 691 of 1986. It is an appeal filed by the wife against the dismissal of her petition (O.P. No. 293 of 1985). It is in evidence that after 25-3-1980, when the parties parted, the husband sent a registered letter on 23-5-1980 calling upon the wife to come over to him and stay with him. This was received by the wife on 24-6-1980, as could be seen from Ext. A5. She did not sent a reply for the said communication. The cruelty set up and sought to be proved by the appellant/wife was the uncommon or erratic behavioural pattern of the husband. It was stated that the husband possessed a strange behaviour, he was suffering from sleeplessness, that he was suspicious in nature, that he used to sit alone and cry, that he (an Advocate) never used to attend court or mingle with friends or other persons, that he . developed an inferiority complex and he was erratic in his behaviour on almost all occasions. It has come out in evidence, from the evidence of PW1 and PW2, that the marriage between the two spouses was settled between the parties only after mutual negotiations by the members of their families and after due deliberations. In such circumstances, one fails to understand the belated complaint of the appellant about the erratic and strange behavioural pattern of her husband. The. specific acts of cruelty on the part of the husband stated to have taken place in December 1979 and February 1980 were borne out only by the interested testimony of the wife (PWl). As against the said testimony, we have the evidence of C.P.W.1(husband) who refuted the same in strong terms. On the final analysis, we have only the sworn testimony of the wife and the husband, each supporting his or her case. In these state of affairs, the learned District judge held that he was not prepared to hold, on the basis of the interested testimony of PW.1, that she was at any time illtreated or manhandled by her husband or that the act of cruelty pleaded was in any manner established. So also, the peculiar behaviour seems to have been exhibited by the husband as also the events that happened on 24-3-1980 in connection with the Easter or even later on some occasions showing the strange behaviour of the husband, were not accepted by the learned District judge, as amounting to cruelty in law. It was held that the conduct on the part of the spouse should be found to be grave of weighty so as to make matrimonial home virtually unendurable, either physically "or mentally, to succeed in an action for judicial separation. As stated in Maynes Hindu Law, page 186, 12th Edn. (1986):

"Cruelty in the legal sense need not necessarily be physical violence and any conduct, behaviour which causes pain and injury in mind as well, and so renders the continuance in the matrimonial home an agonising ordeal and undermines the health which affects reasonable happiness of her life amounts to cruelty. Therefore the ill treatment both physical or mental would constitute defences for restitution of conjugal rights."

The decision of this Court in Gangadharan v. Thankam (1988 (1) K.L.T. 352) is also relevant in this context. We should say that, the tests laid down as aforesaid are not satisfied in this case.

9. In the light of the evidence available in the case, we concur with the learned District judge that the wife failed to establish that she was cruelly treated by her husband and the refusal to pass a decree for judicial separation was justified. So, we hold that the District judge rightly dismissed O.P (Divorce) 293 of 1985. M.F.A. No. 691 of 1986 should, in the circumstances, fail. We dismiss the said appeal. There shall be no order as to costs.

10. In the result, we dismiss M.F.A. No. 693 of 1986 and remit the matter to the court below for a fresh consideration in accordance with law.