HIGH COURT OF JUDICATURE AT ALLAHABAD FIRST APPEAL No. - 8 of 2025 Court No. - 39 HON'BLE ARINDAM SINHA, J. HON'BLE AVNISH SAXENA, J. (Per: Arindam Sinha, J.) 1. The appeal has been called on for hearing. Mr. Rahul Agarwal, learned advocate appears on behalf of appellant (husband) but respondent (wife) goes unrepresented. In this context, paragraphs 1 and 2 from earlier order dated 8th August, 2025 are reproduced below. "1. Mr. Lallan Verma, learned advocate appears on behalf of appellant and with reference to order dated 8th January, 2025 of co-ordinate Bench, demonstrates that Rs.20,000/- had been deposited in the Court below. He submits, steps have been taken for issuance of notice of appeal. 2. We find service report that mother of respondent refused to accept the summons saying, her daughter is away. The service was sought to be made at given address of respondent. We accept it as good service pursuant to judgments of the Supreme Court in C.C. Alavi Haji v. Palapetty Muhammed reported in (2007) 6 SCC 555, State Versus Counsel for Appellant(s) : Lallan Verma, Rahul Agarwal Counsel for Respondent(s) : Abhishek Anand .....Appellant(s) Smt. Archana Yadav .....Respondent(s) of M.P. v. Hiralal, reported in (1996) 7 SCC 523 and M/s. Madan and Co. v. Wazir Jaivir Chand, reported in AIR 1989 SC 630." 2. Mr. Agarwal submits, his client had petitioned for dissolution of the marriage on two grounds, cruelty and desertion. He would want to urge the ground of cruelty. On query he refers to paragraph-17 in impugned judgment dated 28th November, 2024 of the Family Court. He points out, said Court noted that his client had resigned from his job on 3rd April, 2019 but erroneously held no evidence had been presented in that regard. Furthermore, plaintiff had also accused defendant of denying intimacy. The learned Judge also erroneously held, burden was upon plaintiff to discharge but plaintiff failed to prove on absence of evidence adduced. 3. Mr. Agarwal draws attention to paragraphs 13 and 14 in the plaint. He submits, there was clear statement of fact that his client resigned from his job on 3rd April, 2019 and traveled to Bengaluru, where respondent was residing, working there after having left his client in Gurgaon. Further statements are that his client went to live with respondent at Bengaluru. Intimacy was denied. Respondent called the police compelling his client to leave the place of residence. In September, 2020, his client stated to have asked respondent to join him at Allahabad. She did not come. These statements were proved by his client on filing evidence on affidavit dated 2nd July, 2024. There was no cross-examination as respondent chose not to appear in the suit. On query he submits, the Court did not put any questions to his client. He relies on judgment of the Supreme Court in Samar Ghosh vs. Jaya Ghosh reported in (2007) 4 SCC 511 paragraph 101, instance (xii), reproduced below. "(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty." FAPL No. 8 of 2025 2 4. The matrimonial case was dealt with by the Family Court ex parte against respondent. Appellant made allegations in the plaint amounting to cruelty. He filed evidence on affidavit in seeking to establish proof of the statements. Thus, the requirement of law regarding proof of an allegation appears to have been met by appellant. We have also ascertained that the Court did not put any question to appellant with regard to the statements made in the plaint and his evidence on affidavit. In this context, section 165 in Evidence Act, 1872, since repealed, without the provisos is reproduced below. "165. Judge's power to put questions or order production. The judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross- examine any witness upon any answer given in reply to any such question: ................................" Corresponding provision is by section 168 in Bhartiya Sakshya Adhiniyam, 2023. 5. A litigant in seeking to establish a fact by adducing evidence cannot be called upon to prove the negative. Appellant's case before the Family Court was that intimacy was denied. He can only assert and prove, he wanted intimacy. He pleaded and adduced evidence on affidavit, saying so. The Family Court proceeded ex parte against respondent, as authorized by law. In the circumstances we hold, the burden was discharged. Instance (xii) under paragraph 101 in Samar Ghosh (supra) stands attracted. FAPL No. 8 of 2025 3 6. The marriage solemnized on 10th December, 2017 is dissolved by a decree of divorce upon the petition presented by appellant on ground (i-a) under section 13(1) in Hindu Marriage Act, 1955. As such, impugned judgment is reversed. The appeal is allowed and disposed of. 7. The decree be drawn up expeditiously. September 10, 2025 Ashutosh FAPL No. 8 of 2025 4 (Arindam Sinha, J.) (Avnish Saxena, J.) Digitally signed by :- ASHUTOSH SINGH High Court of Judicature at Allahabad