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2011 DIGILAW 897 (PAT)

Shiv Prakash Shah v. Indu Shah

2011-04-29

MIHIR KUMAR JHA, SHYAM KISHORE SHARMA

body2011
JUDGMENT : 1. Having heard learned Counsel for the appellant and also taking into note that the notice of four respondents has already been served, this Court is ready to decide the appeal on merit. 2. The matrimonial case No. 48 of 2003 filed by the appellant seeking dissolution of marriage u/s 13 of the Hindu Marriage Act wherein the main ground for dissolution of marriage was cruelty. The sole respondent, wife of the appellant despite service of notice in the Court below also did not choose to appear and the matter became ex parte. In course of ex parte hearing the sole appellant had examined himself and in his deposition he had given vivid and grafic detail of such cruelty faced by him. The Court below has not doubted any portion of the deposition of the sole appellant but it has proceeded with the matrimonial case only on the ground that other family members of the appellant did not come to support the version of the appellant. This Court would fail to appreciate the scope of corroboration sorted out by the learned Principal Judge of the Family Court. 3. In any case where the petitioner was plaintiff would come out to assert the fact which has not been denied by the defendant, the onus of proving still lie on the plaintiff or petitioner but then after such onus has been discharged by the appellant or petitioner by himself the case cannot be disbelieved on the ground that the version had no any independent corroboration from other sources. There is no requirement of law at least in matrimonial case that the divorce can be only allowed if the version of the husband seeking divorce is supported by other family members. We do not find any justification in dismissing the case of the appellant seeking dissolution of the marriage. 4. As is apparent from the conduct of the wife respondent that she had never contested the matter either before the Court below or even before this Court, it will have to be presumed that she is no longer interested in contesting the claim of the appellant for dissolution of the marriage. 5. 4. As is apparent from the conduct of the wife respondent that she had never contested the matter either before the Court below or even before this Court, it will have to be presumed that she is no longer interested in contesting the claim of the appellant for dissolution of the marriage. 5. Consequently, while setting aside the impugned judgment and the order of the Court below this Court would allow the prayer of the petitioner for dissolution of his marriage and consequently matrimonial case No. 48 of 2003 is hereby allowed and the marriage is dissolved.