Bhavnish vs Smt Soni
2014 Latest Caselaw 7172 Del

$~2
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                       Date of Decision: December 24, 2014
+     MAT.APP. 21/2012
      BHAVNISH                                            ..... Appellant
                          Through:       Mr. Arvind Kumar, Advocate

                          versus

      SMT SONI                                             ..... Respondent
                          Through:       Nemo

      CORAM:
      HON'BLE MR. JUSTICE SUNIL GAUR

                          JUDGMENT

% (ORAL)

Impugned judgment of 21st October, 2011 dismisses appellant's petition for divorce on the ground of cruelty although respondent-wife was ex parte before the trial court.

As per marriage certificate of 9th June, 2009 (Ex.PW-1/A), appellant-husband got married to respondent-wife on 5th June, 2009. It is the case of appellant-husband that respondent was a housewife, who never used to prepare food or tea for him despite request. In the night of 15th July, 2009, appellant-husband had requested respondent-wife to prepare tea for him and she had refused and this incident is one such instances of cruelty inflicted upon appellant-husband by respondent-wife.

Appellant-husband in his ex parte evidence has deposed that apart from the aforesaid incident, on 16th August, 2009, appellant-husband was

MAT.APP. 21/2012 Page 1 beaten by respondent-wife and his relatives and he could manage to save himself with the help of neighbours and that appellant had taken some medication also. Although respondent-wife was ex parte before the trial court, but in the impugned judgment, appellant's case has been disbelieved on the ground that it does not stand corroborated by any medical evidence or by any police report or the deposition of neighbours.

In this appeal, steps were taken by appellant to serve respondent and the notice sent to respondent was received back with the report that she has left the given address. Thereafter, appellant-husband had taken steps for substituted service of respondent and as per order of 20 th February, 2014, respondent is served by way of substituted service i.e. by publication in the newspaper and has not appeared since then. Respondent herein was accordingly set ex parte.

At the hearing of this appeal, learned counsel for appellant submits that the first incident of respondent's refusal to give tea to appellant was not at late night, but was of 8 P.M., when appellant had returned from his work. It is submitted on behalf of appellant that police report was not made with the hope that the marriage with respondent could survive but unfortunately, respondent-wife had left him in August, 2009 itself and so, on the ground of desertion as well, appellant is entitled to decree for divorce.

Upon hearing and on perusal of the impugned judgment and the evidence on record, I find that the unrebutted testimony of appellant- husband needs no corroboration particularly when within few months of marriage, parties do not report the matter to police in case of simple hurt and medication is often taken from family doctor. In such like cases, MAT.APP. 21/2012 Page 2 neighbours seldom come forward to depose. Unrebutted testimony of appellant clearly makes out a case for grant of divorce on the ground of cruelty. Trial court has erred in not relying upon the unrebutted testimony of appellant-husband and so, the impugned judgment is set aside and appellant's petition for divorce is hereby decreed. Appellant is accordingly granted divorce.

This appeal is accordingly disposed of.

                                                       (SUNIL GAUR)
                                                          JUDGE
      DECEMBER 24, 2014
      s




MAT.APP. 21/2012                                                     Page 3