JUDGEMENT

Heard finally with the consent of learned counsel Shri Arun K. Dixit, Advocate appearing on behalf of appellant-wife.

2. By the present appeal, filed under Section 19 of Family Court r/w Section 28 of Hindu Marriage Act, appellant-wife has assailed the judgment and decree dated 15.3.2022 passed in Civil Suit No.39/2020 by IInd Additional Principal Judge, Family Court, Jabalpur (hereinafter referred to as 'Family Court), whereby the appeal filed by appellant-wife under Section 13 of Hindu Marriage Act for dissolution of marriage was dismissed.

3. Bare facts of the case are that, appellant-wife married to respondent- husband as per Hindu Rites and Rituals on 28.5.2008 at Balaghat and after marriage, appellant stayed at matrimonial home but after sometime respondent started treating appellant with cruelty and ultimately after submitting written complaints before Police Officers and Chief Minister in the month of December, 2019, appellant filed petition for dissolution of marriage on the ground of cruelty before Family Court on 7.1.2020. Summons of petition was served through publication in daily news paper Danik Bhaskar, Nagpur Edition but respondent remained absent and Family Court proceeded ex-parte against respondent on 8.10.2021. Appellant submitted her statement on affidavit filed under Order 18 Rule 4 of CPC and learned Family Court by judgment dated 15.3.2022, dismissed the petition filed by appellant.

4. Notice of this appeal was also served upon respondent but respondent chose not to participate in the case, therefore, matter is heard in the absence of respondent.

5. Shri Arun Dixit, learned counsel appearing on behalf of appellant submits that appellant duly proved the allegation of cruelty against respondent by stating that he used to take liquor often and beat to appellant. He further submits that it is proved by appellant in her evidence that respondent was indulged in bad habits of gambling and he was not doing any job, therefore, appellant submitted written complaint (Ex.P/3) before Superintendent of Police Balaghat on 13.12.2019 and Chief Minister on 17.12.2019. It is argued that for the purpose of proving grounds enumerated in Section 13(1)(i-a) of Hindu Marriage Act, it is enough to state the act of cruelty and in absence of any rebuttal, the Family Court ought to have accepted the allegations of cruelty but Family Court failed to appreciate evidence and erred in holding that appellant failed to prove allegations of cruelty against respondent. He prayed for issuance of decree of dissolution of marriage by setting aside the judgment and decree passed by Family Court.

6. After consideration of allegations leveled by appellant in the petition filed under Section 13(1)(i-a) of Hindu Marriage Act, 1955, it reveals that omnibus allegation of consumption of liquor and after consumption of liquor used to beat appellant-wife was leveled against respondent-husband and similarly the allegation of gambling and sale of house hold items for the purpose of gambling were leveled against respondent but no specific date, time, place or incident was pleaded in the petition as well as in affidavit of chief examination filed under Order 18 Rule 4 of CPC to prove the act of cruelty. Dissolution of Marriage is a serious issue having serious consequence and the marriage cannot be dissolved only on the basis of bald and omnibus allegations. There is a presumption of innocence to a charge of cruelty and the burden of proving charge by cogent and relying evidence is on the appellant. The cruelty contemplates is a conduct of such type that the wife cannot responsibly be accepted to live with the husband.

7. In the present matter, respondent was proceeded ex-parte, therefore, appellant was under obligation to prove the allegations of cruelty by adducing reliable evidence but appellant-wife simply leveled the allegation of physical violence without specifying any single incident in the petition or in affidavit of chief examinatio