By the Court.—Heard Sri Sanjay Agrawal, learned counsel for appellant and perused the record. Service upon respondent has been affected by publication in daily newspaper-Hindustan, Meerut Edition, dated 19.2.2017. Service upon respondent is deemed sufficient. None appeared on his behalf though the case is called in revised. Hence, we proceed to hear and decide appeal ex parte after hearing learned counsel for appellant.

2. It is stated that matter is very short and can be decided on the basis of record of this appeal as well as lower Court record which has already been received. Therefore, looking to the financial scarcity of appellant, we dispense with filing of paper book and proceed to decide matter on the basis of record of appeal and that of Court below.

3. This is a plaintiff’s appeal filed under Section 19 of Family Court Act, 1984 (hereinafter referred to as the “Act, 1984”) arising from judgment and decree dated 18.7.2007 passed by Sri S.S. Yadav, Principal Judge, Family Court, Meerut dismissing Divorce Petition No. 548 of 2006 filed by plaintiff-appellant under Section 13(1) of Hindu Marriage Act, 1955 (hereinafter referred to as the “Act, 1955”).

4. Plaintiff instituted Divorce Petition No. 548 of 2006 in Family Court, Meerut under Section 13(1) of Act, 1955 vide plaint dated 26.5.2007 pleading therein that marriage between plaintiff and respondent was solemnized on 24.2.1995 at Meerut as per Hindu Customs and Rituals. Both parties are Hindu. Plaintiff was virgin girl at the time of marriage while respondent was a Vidhur having two children, one daughter and one son by first wife who died, thereafter he performed second marriage. Behaviour of respondent since beginning was very cruel. Immediately after marriage appellant was beaten, repeatedly, and many a times brutally, without any cogent reason. Cruelty increased so much so that on 12.4.2000 respondent physically assaulted plaintiff and ousted her from house. Thereafter she came to her parent’s house to stay and since then residing separately. Divorce petition was filed after almost 6 years from the date she was ousted from husband’s house.

5. Before Court below respondent did not contest the matter. Neither he appeared nor filed written statement disputing claim of appellant. Ex parte evidence was recorded by Court below but thereafter on the date of final hearing since appellant did not appear, Court below proceeded to decide petition on merits and rejected same vide judgment in question on the ground that details of “Cruelty” have not been given and what attempts were made for reconciliation between parties, also have not been disclosed by plaintiff-appellant in divorce petition.

6. Learned counsel for appellant vehemently contended that plaintiff-appellant was not present in Court, hence Court below had no justification to decide suit on merits. At the best, it could have dismissed suit for want of prosecution but instead it has dismissed suit on merits and, therefore, has proceeded illegally in doing so. He secondly contended that details of ‘cruelty’ were explained in plaint and in absence of any denial there was no justification on the part of Court below to non suit plaintiff-appellant on the ground that cruelty could not be proved as details were not given and also details for attempts for reconciliation were not given.

7. In our view, following two points for determination have arisen in this appeal:

(I) Whether Court below was justified in proceeding to decide suit on merits when admittedly plaintiff-appellant was not present and even defendant was not present.

(II) Whether Court below was justified in dismissing suit on the ground that details of cruelty was not given and hence ground for divorce, i.e., cruelty was not proved.

8. In our view judgment of Court below is manifestly illegal, erroneous and cannot be sustained. Both the questions deserve to be answered in favour of plaintiff and Court below has clearly erred in law in taking otherwis