Court No. - 3
Case :- FIRST APPEAL No. - 15 of 2018 Appellant :- Rama Pathak Respondent :- Narendra Kumar Pathak Counsel for Appellant :- Awadhesh Kumar Pandey,Chandra Kumar Singh Counsel for Respondent :- P.N. Tripathi
Hon'ble Pankaj Mithal,J. Hon'ble Rajiv Joshi,J.
Heard learned counsel for the parties.
The appeal has been preferred by the wife against an ex-parte decree of divorce dated 26.7.2017 passed by the Additional District Judge, Fast Track Court in exercise of powers of the Family Court.
The husband has applied for dissolution of marriage dated 3rd February, 1995 on the ground of desertion and cruelty. The above petition has been contested by the wife by filing written statement but thereafter she stopped appearing which led to passing of ex-parte decree.
Learned counsel for the husband contends that before filing of this appeal and after the ex-parte decree the husband has remarried on 24.10.2017.
The Family Court simply relying on the pleadings in the petition and by stating that the P.W.1 fully supported the averments made in the petition which has not been controverted or denied held that the petition is liable to be decreed and decreed the petition.
The Family Court has neither framed any issue which may be arising in view of the pleadings between the parties nor has recorded any specific finding with regard to desertion or cruelty on the part of the wife and has decreed the petition.
It is settled law that the plaintiff has to succeed on his own and plaintiff cannot take advantage of the weakness of the other side. The husband in the present case has appeared as a witness but that alone is not sufficient for the court below to record that the evidence adduced by him is good enough to constitute desertion or cruelty without discussing the nature of evidence and recording reasons for conclusion on its basis.
In view of the above, the judgment is cryptic and cannot be sustained in law.
Accordingly, the judgment dated 26.2.2017 is set aside and the appeal is allowed with the direction to the court below to proceed afresh and decide the petition in accordance with law.
Order Date :- 30.5.2018 Brijesh