High Court
Case Details
Court No. - 39 Case :- FIRST APPEAL No. - 557 of 2018 Appellant :- Arti Devi Respondent :- Suraj Kumar Counsel for Appellant :- Ramesh Kumar Mishra,Surendra Kumar Chaubey Hon'ble Mrs. Sunita Agarwal,J. Hon'ble Mrs. Sadhna Rani (Thakur),J.
Legal Reasoning
Office has reported that the paper book has not been filed by both the parties. Looking to the fact that the lower court record is before us, the requirement of filing the paper book is dispensed with and we proceed to decide the appeal on merit. This is wife's appeal seeking to challenge the order of rejection of the divorce suit filed by her, which had proceeded exparte on account of the absence of the respondent husband. This appeal was admitted on 17.09.2018 and before admission of the appeal, by the order dated 10.08.2018, notice was issued to the sole respondent by registered post AD. The office report dated 14.09.2018 indicates that the service of summons upon the sole respondent was sufficient and it was further deemed to be sufficient in the order passed by this court on 17.09.2018. It has been stated in the current office report dated 26.07.2022 that no vakalatnama has been filed on behalf of the sole respondent as yet. No one has put in appearance on behalf of the respondent. We may note that in the divorce suit filed by the appellant wife, the respondent husband did not appear and in evidence the appellant wife had produced four witnesses including herself as P.W. 1 to P.W. 4.
Legal Reasoning
It is argued by the learned counsel for the appellant that the evidence led by the appellant wife before the Family Court in the shape of the statements of her family had been simply rejected in one line that they were related witnesses and from their evidence it could not be ascertained that the appellant wife was ever medically examined for the allegation of physical assault to her nor any report was registered with the police. It was further noted that no effort had been made by the appellant wife to resolve the matter in an amicable manner through panchayat or mediation process. In the divorce petition, the appellant had stated that she was physically assaulted, mishandled and mentally and physically abused by her husband soon after her marriage, who used to consume liquor and beat her. Two children (one female and one male) born out of the wedlock are residing with the appellant wife and no maintenance had been paid by the respondent husband either for the wife or for the children. She was thrown out of her matrimonial home on 04.10.2014 after threatening her to bring dowry. In support of this submission, the wife had produced her parents and brother in the witness box and also examined herself. The statements made by the witnesses were neither considered nor appreciated by the Family court while recording the findings against the appellant that she had not been able to prove the allegation of cruelty committed by her husband. The conclusion drawn by the Family Court in rejection of the oral testimony of the witnesses in one line by terming them as interested witnesses is wholly uncalled for. In a matrimonial matter where the allegations are of committing cruelty, demand of dowry and physical and mental abuses within the four walls of the house, no outsider would possibly be in a position to support the wife. The testimony of the relatives (near or distance) of the wife cannot be discarded solely on the ground that they are interested witnesses. According to us, the parents and brother of the appellant were the natural witnesses to prove the assertion of the wife that she had been mishandled and abused by her husband. Further, the observation of the Family Court that no medical report of any physical assault or police report was brought on the record, we may note that in the matter of domestic violence, wife often does not go out to the police and, more so, in the instant case, the proceeding under Section 12 of the Domestic Violence Act has been drawn by the appellant wife. Further the findings returned by the Family Court that no mediation or conciliation process was adopted by the wife, we may note that such an observation to disbelieve the case of the appellant is reckless, inasmuch as, the respondent husband had abstained from the proceeding before the Family Court and as such there was no occasion for the appellant wife to seek help of mediation process as the mediation can only be conducted between the spouses. Apart from the above, we may note that the respondent husband had remained absent in the present appeal even and did not appear before us. For all the aforesaid reasons, we find substance in the submission of the learned counsel for the appellant and the appeal filed by the appellant wife. While setting aside the judgment and order dated 30.05.2018 passed by Additional Principal Judge Family Court/Fast Track Court No. 1, Varanasi in rejection of the divorce suit under Section 13 of Hindu Marriage Act exparte, we relegate the matter to the Family Court for fresh consideration. The Family Court shall issue fresh notice to the respondent husband before proceeding to decide the suit on merits in accordance with law. It is, however, clarified that the evidence already on record is required to be appreciated by the Family Court as there was no appreciation of evidence while dismissing the suit. However, in case the respondent husband puts in appearance, an opportunity to cross examine all the witnesses of the petitioner wife would be provided to the respondent husband. It goes without saying that both the parties would be at liberty to lead additional evidence, if so advised. In any case, the divorce suit shall be decided strictly in accordance with law as early as possible, preferably within a period of six month from today. The lower court record shall be transmitted back immediately.
Decision
The appeal is allowed, accordingly. Order Date :- 27.7.2022 gp Digitally signed by GANESH PRAKASH Date: 2022.08.02 18:36:33 IST Reason: Location: High Court of Judicature at Allahabad