JUDGMENT : Gopal Krishan Vyas, J. 1. In this D.B. Civil Misc. Appeal filed under Section 28 of the Hindu Marriage Act read with Section 19 of the Family Court Act, 1984, the appellant wife is challenging the judgment of divorce decree dated 10.9.2015 passed by the learned Judge, Family Court, Bikaner in Civil Misc. Case No.791/2012 by which the learned Family Court allowed the application filed by the respondent Manohar Das under Section 13 of the Hindu Marriage Act whereby the divorce decree in faovur of the respondent is granted. 2. As per the facts of the case the marriage of the appellant Smt. Sharda D/o Mindadas was solemnized 31 years ago as per the Hindu rights. From the said wedlock of the appellant and respondent, five children namely Babu Lal, Shanker, Kailash, Bebi Radha and Puja were born. All the children are living with the appellant mother since their birth. As per the pleading after marriage the behaviour of the respondent husband became so quarrelsome and from last 12 years relationship in between the appellant and respondent was not healthy. 3. As per the allegation of appellant, respondent husband was regularly torturing her and he was regularly giving threatening for divorce and demoralizing her like anything. As per appellant, she and her children remained silent because there is no other source of income for appellant to maintain her and her children. The appellant is facing financial hardship because no one is there to maintain them. 4. The respondent filed an application for divorce under Section 13 of the Hindu Marriage Act. The Family Court issued notice to the appellant to appear before the court, but due to financial crises, she did not appear before the court to contest the case. According to the appellant, she belongs to power class family and being uneducated lady was not in position to understand the matter, therefore, due to unavoidable circumstances, she did not appear before the Family Court. During the course of arguments, it is also submitted that no proper service of notice was made upon her, in spite of that, on 18.10.2013, the learned Family Court proceeded to pass an order ex-parte. 5. On 13.1.2014, the power was filed by advocate Sh. Purshottam Das on behalf of the appellant before the Family Court along with an application under Order 9, Rule 7 Civil Procedure Code to set aside ex-parte order. 5. On 13.1.2014, the power was filed by advocate Sh. Purshottam Das on behalf of the appellant before the Family Court along with an application under Order 9, Rule 7 Civil Procedure Code to set aside ex-parte order. Vide order dated 31.1.2014 the ex-parte order dated 18.10.2013 was set aside and time was granted to file reply. 6. On 10.7.2015 due to financial crises, the appellant did not appear before the court, therefore, again learned Family Court proceeded ex-parte and, thereafter, finally passed the divorce decree on 10.9.2015. 7. The said judgment and decree is under challenge in this appeal. 8. Learned counsel for the appellant submits that no maintenance was given to the appellant and therefore, it was not possible for her of being survived and to attend the Family Court to contest the divorce petition. At one point of time, when ex-parte order was passed on 13.10.2013 after engaging lawyer, she appeared before the court and filed an application to set aside ex-parte order and that application was accepted, but later on, due to non-availability of finance on one date, she did not appear, therefore, Family Court passed the decree of divorce without providing an opportunity of hearing to the appellant wife. 9. Learned counsel for the appellant submits that on merit also, there is no ground to grant divorce decree and no documentary evidence was produced by the respondent before the court to prove the allegation that in the month of Jan., 2000 the appellant and his children assaulted him and poured kerosene upon him to cause death. All the allegations made by the respondent husband are false because no such incident took place nor any FIR was filed by the respondent to prove the said allegation, therefore, on merit also, the divorce decree and judgment impugned is not sustainable in law, therefore, the impugned judgment and decree dated 10.9.2015 may kindly be quashed. 10. Per contra, learned counsel appearing for the respondent-husband submits that in spite of granting an opportunity, the appellant did not appear before the court, therefore while accepting the evidence of respondent-husband, the learned Family Court granted divorce decree after proceeding ex-parte against the appellant. 11. According to the learned counsel for the respondent, no error has been committed by the Family Court in passing divorce decree, therefore, this appeal may kindly be dismissed. 12. 11. According to the learned counsel for the respondent, no error has been committed by the Family Court in passing divorce decree, therefore, this appeal may kindly be dismissed. 12. After hearing the learned counsel for the parties, it emerges from the record that there is no assertion of the respondent how the appellant is maintaining herself. It is also nowhere stated by the respondent husband that appellant wife is having any means to maintain herself. It is also emerges from the finding that an allegation was made by the respondent husband that in the month of Jan., 2000 he was assaulted by appellant and her children, so also, poured kerosene upon him so as to cause injury but except affidavit no documentary evidenced is produced on record so as to prove the said allegation. It is also worthwhile to observe that in the evening of life the instant matrimonial dispute arose in between the parties after birth of five children. 13. In view of the fact that there is no assertion in the application of respondent filed under Section 13 of the Hindu Marriage Act with regard to means of maintenance of appellant wife, we are of the opinion that it is not possible for any lady to maintain herself without any financial assistance. Further, it is also required to be observed that in absence of any documentary evidence with regard to allegation made in the affidavit, no finding can be given by the learned trial court so as to accept the contention which is based upon allegation for which no action was taken by the litigant. 14. In view of the above, this appeal is allowed. The judgment and decree of divorce dated 10.9.2015 passed by the Judge, Family Court, Bikaner is hereby quashed and set aside. The case is remitted back to the learned Family Court, Bikaner to decide the same afresh after providing an opportunity of hearing to both the parties. The appellant and respondent shall appear before the Judge, Family Court, Bikaner on 2.1.2017 and the learned Judge, Family Court is directed to provide opportunity to the appellant to file reply within one month from the date of her appearance before the court and after filing reply he may proceed to decide the case afresh in accordance with law preferably within a period of six months thereafter. 15. 15. The appellant will be at liberty to file an application under Section 24 of the Hindu Marriage Act to get maintenance and expenses for this litigation. Upon filing such application, the Judge, Family Court, Bikaner shall decide the application first and thereafter proceeding to decide the case.