MANGI BHAI Vs. ISHWAR LAL

JUDGEMENT

(1.) The instant appeal has been filed under Section 28 of the Hindu Marriage Act, 1955 against the judgment and decree dated 01.11.2003 passed by the District Judge, Pratapgarh in Civil Regular Case No.38 (64)/98, by which, application filed under Section 13 and 25 of the Hindu Marriage Act filed by the wife has been dismissed.

(2.) Brief facts of the case are that an application under Sections 13 and 25 of the Hindu Marriage Act was filed by the appellant (wife) against respondent husband for seeking divorce on the ground of cruelty and making illegal treatment for demand of dowry. In the application, maintenance was also demanded by the appellant wife. Learned trial Court, after issuing notices, framed issues and after recording evidence on behalf of the appellant passed ex parte decree on 01.11.2003, whereby, application filed by the appellant wife under Sections 13 and 25 of the Hindu Marriage Act was dismissed.

(3.) Learned counsel for the appellant vehemently argued that the trial Court has committed manifest illegality while rejecting the application filed for divorce. Further, the learned trial Court has not properly appreciated the evidence adduced by the appellant for which there is no rebuttal on record because inspite of service the respondent husband did not appear before the Court to contest the application filed under Section 13 of the Hindu Marriage Act. Before the trial Court, counsel for the respondent pleaded no instructions, therefore, while deciding the case the learned trial Court was under obligation to accept the unrebutted allegations made by the appellant with regard to cruelty against her. But, the learned trial Court has committed error while dismissing the application filed by the appellant though the appellant has proved issues No.1 and 2 through oral evidence.