The court established that in divorce proceedings under the Hindu Marriage Act, the absence of the respondent and credible allegations of cruelty justify the dissolution of marriage, applying a standard of preponderance of probabilities.

JUDGMENT :

(Alok Kumar Pandey, J.)

The present appeal has been directed against the impugned Judgment dated 01.05.2023 and decree dated 09.05.2023 passed by the learned Additional Principal Judge, Family Court, Patna in Matrimonial (Divorce) Case No. 04 of 2018 whereby and whereunder the matrimonial case filed by the appellant for grant of decree of divorce has been rejected.

2. Briefly stated the fact of appellant’s case is that appellant filed divorce petition on 03.01.2018 under Section 13(A) of Hindu Marriage Act. The relevant facts are being projected on the basis of divorce petition wherein it is asserted by the appellant that marriage of appellant was solemnized with respondent on 30.11.2024 according to Hindu rites and rituals at House No. 33, Kidwaipuri, P.S. Kotwali, District Patna and it is averred that gifts like 12 gram gold, 500 gram silver, television, fridge, washing machine, other necessary articles and ten lakh rupees were given to respondent at the time of marriage. It is claimed that on 01.12.2014 the appellant came to her husband's house situated at village-Jogiara, P.S.-Jale, District Darbhanga. It is further claimed that respondent started demanding more dowry and the said demand was not being fulfilled by the parents of the appellant, hence she was being assaulted by the respondent and his family members and she was ousted from the house of respondent on 05.12.2014 and it has been claimed that marriage was not consummated. It is further asserted that respondent brought the appellant back with him on 17.01.2015 on the basis of negotiation made by the parents of the appellant. It is further claimed that respondent and his family members started torturing the appellant for demand of dowry. Respondent is said to have refused to make physical relation with the appellant despite being request made by appellant/wife. It is further claimed that appellant was again driven out of the house of the respondent on 20.03.2015 by the respondent and family members and since then appellant was never taken back in spite of the efforts made by the parents of the appellant. It is claimed that since 20.03.2015 she is living separately from the respondent without any break. It is further claimed that in the month of October, 2017 parents of the appellant contacted the respondent and requested him to keep her daughter with him but respondent clearly refused to keep the appellant/wife. Hence, respondent committed cruelty against the appellant as the appellant was deserted by the respondent since 20.03.2015 without any valid reason and marriage was not consummated.

3. Despite being all the process exhausted by the concerned court, respondent did not appear and divorce case was decided ex parte.

4. This court has issued all the necessary processes against the respondent/husband to secure his presence but he did not turn up before this court also.

5. Learned counsel for the appellant submitted that learned concerned court dismissed the divorce petition on the ground that allegations of torture made against the respondent do not fulfill the criterion of cruelty as envisaged in law. He further submitted that concerned court also held that since in her statement before the court, she did not make any statement that her marriage has not been consummated therefore, the said alleged allegation was not proved. Learned Family court also held that evidence of the appellant does not show that the respondent created any such situation which compelled her to live separately from her husband. He further submitted that being aggrieved and dissatisfied with the judgment and decree passed in Matrimonial Divorce Case No. 04 of 2018, the appellant has filed the present miscellaneous appeal. Counsel of the appellant submitted that in family matters formalities of procedure has not been strictly followed to prove the fact beyond reasonable doubt. Learned counsel for the appellant submitted that respondent attitude can be witnessed that despite being suffi