Many times when one party files a case, the other party after receiving court summons, does not appear in court. In such a scenario, the Hon’ble Judge decides the case on the basis of the material available before the court, i.e. pleadings and evidences produced by the party who files the case. In legal language it is called as ‘ex-parte’.
In this article, I have highlighted the importance of evidence in absence of a cross examination in an ex-parte case, as held by the Hon’ble Delhi high court in the below mentioned judgment.
- Court: Hon’ble High Court of Delhi
- Date: 03.05.2019
- Case No.: MAT.APP(F.C.) 12/2018
- Title: NV Vs AV
- Wife filed a case for divorce under Section 13(1)(ia), (ib) of the HMA (on the grounds of Desertion and Cruelty)
- Wife had pleaded allegations of dowry, taunting, beating, attempt to kill, starvation, desertion, etc.
- Husband denied all the allegations made by wife but after filing the written statement, he stopped appearing and was proceeded ex-parte.
- Wife examined herself and filed evidence by a way of affidavit. In the affidavit, she deposed on the lines of the averments in the Divorce Petition. The Family Court dismissed the petition.
- Wife moved the Hon’ble Delhi Hight court, who among many other things, observed that ‘Having gone through the evidence, the Family Court was of the view that under Section 101 of the Indian Evidence Act, 1872, the appellant had to prove her case and though the testimony of the appellant in the affidavit was unrebutted, in the absence of a cross-examination, yet the same was not reliable and could not be the basis to grant a decree of divorce’.
Hon’ble Delhi high court among many other things, held that:
- The testimony of the wife alleging cruelty is unimpeached as the husband had chosen not to cross-examine her on this aspect. In our view, this by itself is a ground to dissolve the marriage on the ground of cruelty.
- The appeal is accordingly allowed and the judgment dated 30.08.2017 of the Family Court is set aside. The marriage between the parties is hereby dissolved. Let a decree of divorce be drawn up accordingly.
To read the complete judgement, click here.