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2010 DIGILAW 387 (JHR)

Bhalerian Tirkey v. Lily Grase Minz

2010-03-29

M.Y.EQBAL, PRADEEP KUMAR

body2010
JUDGMENT (M. Y. Eqbal, J. ) 1. Heard the parties. 2. This appeal is directed against the judgment and decree dated 03.8.2009 passed by the Principal Judge, Family Court, Ranchi in Matrimonial Title Suit No.206 of 2008 whereby he has allowed the suit filed by the respondent wife for a decree of divorce under Section 10 of the Indian Divorce Act and dissolved the marriage between the parties. 3. The facts of the case lie in a narrow compass: The respondent wife filed the aforementioned suit for adecree of divorce under Section 10 of the Indian Divorce Act. Both the appellant and the respondent are Christians and their marriage was solemnized on 30.12.1986 at Catholic Church and out of the wedlock, one female child was born in the year 1991 and one male child was born in 1996. The respondent's case was that the appellant was initially employed in Railway but subsequently after qualifying Bihar Public Service Examination, posted as District Superintendent of Education at Ramgarh. The respondent wife alleged that the appellant occasionally visited the place of the respondent and after taking liquor, used to abuse and torture the respondent. He was also having affairs with another lady and threatened her to kill if she interferes with the affairs of the appellant. The respondent's further case was that she was living separately since November, 2005 and in spite of several attempts of reconciliation, the appellant refused to keep her with him. 4. The appellant, who is the husband, appeared in the suit, but not filed any show cause, rather left making any pairvi in the suit. The Court below, therefore, after recording the evidence of the witnesses produced by the respondent wife, decreed the suit. 5. Mr. Prashant Pallav, learned counsel appearing for the appellant, assailed the impugned judgment and decree as being illegal and wholly without jurisdiction. Learned counsel drawn my attention to Section 22 of the Indian Divorce Act (in short 'the Act') and submitted that the Court below could not have decreed the suit for divorce. Learned counsel further submitted that there is a total non-application of mind while passing the impugned judgment and decree. 6. Mr. Learned counsel drawn my attention to Section 22 of the Indian Divorce Act (in short 'the Act') and submitted that the Court below could not have decreed the suit for divorce. Learned counsel further submitted that there is a total non-application of mind while passing the impugned judgment and decree. 6. Mr. P.P.N. Roy, learned counsel appearing for the respondent wife, on the other hand, submitted that the appellant in spite of service of notice, although appeared, but not contested he suit by filing written statement or show cause, rather he left making pairvy in the case. On this ground alone, the appellant cannot be allowed to challenge the decree passed by the Court below. 7. As noticed above, the respondent wife filed a suit under Section 10 of the Divorce Act seeking relief of dissolution of the marriage by a decree of divorce. The Court below after briefly stating the case of the respondent wife, decreed the suit by recording the following findings: "4. On behalf of the petitioners altogether 3 witnesses have examined, P.W1 is Petitioner herself, P.W2 is Selina Lakra, and P.W3 is Jina Jolly Tirkey, daughter of the petitioner. 5. All these witnesses have fully supported the facts of the case. Witnesses have not been cross-examined. There is nothing in the record to controvert the pleadings of the petitioner. The case of the petitioner stands proved. 6. The petitioner has been able to prove cruelty on the part of the respondent as well as withdrawal of respondent from the society of petitioner. The petitioner is entitled to get a decree of divorce for the aforesaid reasons. Accordingly, the prayer of the petitioner is hereby allowed. The marriage between the parties held on 30.12.1986 is hereby dissolved by a decree of divorce. Office is directed to prepare decree. 7. There is prayer for grant educational expenditure of the children against the respondent. The petitioner will be at liberty to file a separate suit for initiate a proceeding for the educational expenses as demanded by her. With this observation the suit stands allowed." 8. I have gone through the lower Court records, from which it reveals that the appellant, who was the respondent in the Court below, in spite of service of notice, did not appear. Consequently on 21.2.2009 the suit was fixed for exparte hearing. The Court below, thereafter, proceeded for hearing of the suit exparte. I have gone through the lower Court records, from which it reveals that the appellant, who was the respondent in the Court below, in spite of service of notice, did not appear. Consequently on 21.2.2009 the suit was fixed for exparte hearing. The Court below, thereafter, proceeded for hearing of the suit exparte. In the meantime on 25.5.2009 two petitions were filed by the appellant, one for recall of the exparte order and another for conciliation. The Court below then referred the matter to the conciliator/mediator. The order dated 15.6.2009 passed by the mediator shows that although both the parties appeared before the mediator but in spite of best effort the parties were not ready to settle their dispute. Hence the records were sent back to the Court below. The appellant respondent then left making any pairvi in the suit. Even the petition for recall of the exparte order was not pressed. Consequently, the Court below, after recording the evidence of the witnesses produced by the respondent wife and after hearing the counsels, passed the impugned judgment and decreed the suit. 9. In the facts and circumstances of the case, I do not find any justified reasons to set aside the decree passed by the court below. Hence, there is no merit in this appeal, which is, accordingly, dismissed.