V.K.Mohanan, J.
Appellant herein approached the Family Court, Thodupuzha by filing a petition under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955 (hereinafter referred to for short “the Act” only) for dissolution of his marriage with the respondent whose marriage was solemnized on 10.11.2002 at Mangalya Auditorium, Ettumanoor in Kottayam District in accordance with the religious rites and ceremonies of Viswakarma community of Hindu religion. The learned Judge of the Family Court as per the impugned judgment found that the ground - cruelty - alleged by the appellant/petitioner is not proved with sufficient evidence and accordingly, rejected the prayer and dismissed the petition. Hence this appeal.
2. We heard Shri Jaison Joseph, learned counsel for the appellant. Though notice is served on the respondent, adopting the same approach in the trial court, the respondent did not care to appear before this Court either in person or by engaging a counsel of her choice and to defend the appeal. From paragraph 3 of the impugned judgment, it can be seen that the trial court has issued notice on the respondent wife but, she did not appear in that court even after the acceptance of summons. Therefore, she was called absent and set ex parte.
3. On the basis of the available evidence and materials and the arguments advanced, the trial court considered the question, whether the appellant/petitioner is entitled to get dissolution of marriage under Section 13(1)(ia) and (ib) of the Act. Learned counsel for the appellant vehementally submitted that in support of the allegation and the prayer in the petition, the appellant/petitioner had filed a sworn affidavit and thus adduced evidence in support of his prayer. Thus, the appellant had established his case and the contents of the sworn affidavit and the evidence so adduced have not been challenged or disputed by the respondent. But according to the counsel, the learned Judge of the Family Court held that the appellant/petitioner failed to prove and establish the grounds for divorce. Learned counsel for the appellant/petitioner further submitted that if the matter is remanded back to the trial court, the appellant/petitioner can adduce further evidence, on the basis of which the court below can consider the matter afresh, especially when the respondent wife has not controverted the allegation and the evidence so far adduced.
4. Admittedly, the marriage between the appellant/petitioner and the respondent was solemnized on 10.11.2002. It is also the admitted case of the appellant that in the year 2006 he had shifted his residence from Teekoi in Meenachil Taluk to a house at Ellupuram in Muttam Village in Idukki District along with his parents but, the respondent wife did not join with him even though he had caused to send a lawyer notice on 07.04.2006 demanding the respondent-wife to join and live with him. The specific allegation raised by the appellant/petitioner against the respondent-wife is that she used to call abusive words against him and she mixed poison with the meals for the appellant and the appellant felt bad odour of the poison and thus he did not take the meals. After all these, the respondent left the company of the appellant/petitioner and thereafter she was residing along with her parents from September, 2006 onwards. So, according to the appellant/petitioner, the above conduct and approach of the respondent-wife would amount to cruelty, on the basis of which the court below ought to have allowed the petition and granted an order as prayed for.
5. On a perusal of the impugned order, it can be seen that, as we have indicated earlier, the respondent-wife did not contest the petition and she was set ex parte. Whatever evidence adduced by the appellant/petitioner had also not been challenged by the respondent. However, it is also discernible from the order that except the sworn statement filed by the appellant/petitioner, no other evidence is adduced in support of the relief sought for in the petition filed by him. On a reading of Section 23 of the Act, it can be seen that in a proceeding under the said Section, whether such proceedings defended or not, a decree as prayed for can be granted only on the satisfaction of the court on the grounds mentioned therein. Hence it is the unshifted burden of the party, who approaches the court for a decree of divorce, under Section 23 of the Act and in the present case it is for the appellant - the husband - to adduce evidence to the satisfaction of the court below in support of the grounds urged, in spite of the fact whether such prayer is opposed or the proceeding is defended by the opposite party. So, in the present case, in the absence of other evidence we cannot say that the learned Judge of the trial court is wrong in dismissing the petition moved by the appellant/petitioner even though the respondent is set ex parte. It is also a fact that the respondent is neglected to appear even before this Court and failed to resist the appeal preferred by the appellant against the above finding and order of the trial court.
6. It is relevant to note that though the marriage between the appellant and the respondent was solemnized on 10.11.2002, in view of the contentions and claim of the appellant, it is seen that the respondent deserted him and she is residing along with her parents in her parental home at least from September, 2006 onwards. After the impugned order about five years are over and still then the parties are living separately. Under the above factual background and considering the fact that the respondent has not raised any objection or contested the matter either in the trial court on in this Court and especially when the learned Judge of the trial court has found that the appellant/petitioner failed to adduce sufficient evidence to substantiate the grounds alleged, we are of the view that it is only just and proper to remand the matter to the trial court so as to enable the appellant/petitioner to adduce further evidence and to direct the court below to consider the prayer of the appellant/petitioner afresh on the basis of the additional evidence to be adduced.
In the result, this appeal is disposed of, setting aside the order dated 18.12.2009 in O.P.(HM) No.212 of 2009 of the Family Court, Thodupuzha and the matter is remanded back to the said court for fresh consideration, after providing an opportunity to the appellant/petitioner to adduce further evidence and the court below is directed to dispose of the matter within three months from today.
V.K.MOHANAN, JUDGE.
A. HARIPRASAD, JUDGE.
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