Allahabad High Court
Ved Prakash Mishra vs Shashi Prabha Mishra on 2 January, 2023
Bench: Ramesh Sinha, Subhash Vidyarthi
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 1
Case :- FIRST APPEAL No. - 9 of 2022
Appellant :- Ved Prakash Mishra
Respondent :- Shashi Prabha Mishra
Counsel for Appellant :- Ajeet Kumar Mishra
Hon'ble Ramesh Sinha,J.
Hon'ble Subhash Vidyarthi,J.
The instant appeal under section 19(1) of the Family Court Act 1984 has been filed against the ex parte judgment and decree dated 18.10.2021 passed by the learned Additional Principal Judge, Family Court-Ist, Pratapgarh, dismissing Regular Suit No. 344 of 19 filed by the appellant seeking a decree of dissolution of his marriage.
Notice of the appeal was issued to the respondent and on 31.3.2022 the office has submitted a report that the service of notice is sufficient, yet the respondent has not come forward to contest the appeal.
Facts of the case, briefly stated, are that the appellant got married to the respondent on 27.6.2004; that although the appellant and his family members had expressed a desire to see the respondent before marriage, but the respondent's father declined the request on the pretext that he belonged to an orthodox family, where there was no such custom as would allow the girl being seen before her marriage and that he assured that the respondent did not suffer from any physical or mental infirmity; that when the respondent came to the appellant's house after her marriage, it was revealed that she suffered 40% physical disability, from which the appellant and his family members felt that they had been defrauded by the father and other family members of the respondent; that a quarrel took place between the parties for the aforesaid reason and the marriage could not be consummated; that the respondent used to go to her parents' house off and on and she did not perform her conjugal duties; that the respondent is working as a Shikshamitra in her own village and both the parties are leading a deserted life and that in June, 2011 the parties had amicably entered into an agreement regarding dissolution of their marriage, but later on the appellant came to know that a decree for divorce can only be passed by a court of law and, therefore, the suit was filed.
Although the summons of the suit were sent to the respondent, she declined to receive the same and, therefore, the proceedings of the suit were proceeded with ex parte.
The appellant examined himself as PW-1 and his father was examined as PW-2. Both of them supported the plaint averments. The Family Court held that although the appellant claimed that he got married to the respondent on 27.6.2004, no documentary evidence of marriage was filed; that no documentary evidence regarding physical disability of the respondent was filed and that although it has been pleaded that in 2011 the marriage was dissolved by mutual consent in presence of respected persons, no documentary evidence to prove the aforesaid fact was filed. The Family Court held that the appellant did not adduce any evidence to establish that he made any efforts for keeping the respondent with him and he did not file any suit for restitution of conjugal rights and, therefore, the plaintiff could not establish that the respondent had withdrew herself from his company without any reasonable cause. For the aforesaid reasons, the Family Court dismissed the suit for divorce filed by the appellant.
The learned counsel for the appellant has submitted that the learned Family Court has wrongly discarded the appellant's version, which has not been rebutted by the respondent.
We have gone through the aforesaid judgment passed by the Family Court and have considered the submissions made by the learned counsel for the appellant. The plaintiff had filed the suit for divorce pleading that the marriage between the parties was solemnized on 27th June 2004 and his consent for the marriage was obtained by committing fraud by concealing the fact of physical disability of the respondent; that the marriage was not consummated; that initially the respondent used to go to her father's house off and on and she left the house of the appellant for good in June 2011.
The appellant examined himself as PW-1, who supported the plaint averments and stated that he was leading a deserted life and he could not get an offspring due to the aforesaid reason. The appellant's father also supported the plaint's averments.
A civil suit is decided on the basis of preponderance of probabilities and the standard of proof beyond reasonable doubt is not applicable to civil suits. It appears from the records that the appellant had pleaded that the respondent had deserted him for good in June 2011, whereas the suit was filed on 16.5.2019. In spite of service of summons of the suit, the respondent did not file a written statement and, thus, the plaint averments remained uncontroverted. The plaint averments were proved by the appellant by examining himself and his father, whose evidence remained unrebutted, therefore, the plaint case of desertion by the respondent was adequately proved by tilting preponderance of probabilities in favour of the appellant.
For establishing the factum of desertion, a plaintiff is not required to establish that after being deserted, he made efforts for bringing back the deserter spouse and that he filed a suit for restitution of conjugal rights. The learned Family Court has not adverted to the aforesaid aspect of the matter.
In view of the aforesaid discussion we find that the Family Court has erred in dismissing the suit ex parte and we are of the view that keeping in view the facts and circumstances of the case the suit for divorce filed by the appellant deserves to be decreed.
Accordingly, the instant appeal is allowed. The judgment and decree dated 18.10.2021 passed by the Additional Principal Judge, Family Court-I, Pratapgarh, dismissing Regular Suit No. 344 of 2019 is set aside and reversed and the aforesaid suit stands decreed.
However, there will be no order as to costs.
.
(Subhash Vidyarthi, J.) (Ramesh Sinha)
Order Date :- 2.1.2023
A.Nigam
