Mat.App. 2/2004 BEFORE THE HON’BLE MR. JUSTICE AMITAVA ROY THE HON’BLE MR. JUSTICE C.R. SARMA Amitava Roy.J The judgment and order dated 18.09.2003 passed by the learned Di strict Judge, Bongaigaon in Title Suit (D) No.23/2003 dismissing the application under Section 13(1)(ia)(ib) of the Hindu Marriage Act, 1955 (hereinafter in sho rt the Act) filed by the appellant wife seeking dissolution of her marriage with the respondent, is the subject matter of the instant appeal. [2] We have heard Mr. M U Mahmud, learned counsel for the appellant. The office notes establish that in spite of service of notice, respondent has n ot entered appearance. Having regard to the year of the appeal we are not inclin ed to adjourn the hearing thereof any further. [3] As indicated herein above, the appellant filed a petition under Section 13 of the Act, seeking dissolution of her marriage with the respondent a nd also permanent alimony of Rs.1,00,000/- for her maintenance. According to her , the marriage between the parties was solemnised on 09.09.2000 at her house as per Hindu rites, rituals and customs, which was followed by a written agreement of marriage executed and registered before the Sub-Registrar, Bijni on the same very date. The parties thereafter, set up their matrimonial home at Kushlaiguri Patiladaha in the district of Bongaigaon. After that, the appellant wife was men tally and physically tortured based on persistent demands for dowry to her paren ts, which the latter in view of their stringent financial condition were not in a position to meet. Eventually, as alleged by the appellant, she was severely as saulted on 14.02.2000 and ousted from the matrimonial home where after, she took shelter with her parents. According to her, all efforts for reconciliation made from her side failed. Not only the respondent refused to take her back, he inst ituted TS No.4/2000 in the court of District Judge, Bongaigaon seeking a declara tion for nullity of marriage between them. In the said suit on her application u nder Section 24 of the Act, the learned Court, by order dated 08.11.2000 directe d the present respondent to pay an amount of Rs.400/- per month as maintenance p endentilite and a further amount of Rs.3,000/- as cost of the proceeding. This s uit was eventually dismissed on 10.10.2002 for default. [4] The respondent in his written statement, in substance, denied th at any marriage had taken place between them in accordance with Hindu religious rites and customs and dismissed the claim of the appellant as concocted and for wrongful gain. [5] On the pleadings of the parties several issues were framed, whic h are quoted herein below. 2. Whether there was valid marriage between the petitioner and the respondent? 4. Whether the petitioner was mentally and physically tortured by the respondent with demand of dowry of Rs.10,000/-? 5. Whether the petitioner was driven out from her matrimonial home on 14.02.2000 since then she has been deserted by him? [6] To prove the respondent’s case, the appellant examined herself a nd her mother, Smti Ranjana Bhowmik. The Respondent has also examined 2 witnesse s including himself. [7] After a consideration of the pleadings of the parties, the impug ned judgment was passed. [8] The learned Trial Court on an analysis of the materials on recor d concluded that the appellant had failed to prove that her marriage with the re spondent had been performed in accordance with the Hindu rites, rituals and cust oms. It also rejected her allegation of torture both physical and mental based o n the demand for dowry. [9] Mr. Mahmud, the learned counsel for the appellant has urged that the learned Court below had totally misread the pleadings on record in arriving at its finding on the count of validity of marriage as well as cruelty asserted by the appellant and therefore, in the interest of justice, the impugned judgme nt and order to be interfered with. In support of the claim for permanent alimon y, learned counsel for the appellant has drawn the attention of this court to th e evidence advanced before the learned Trial Court to the effect that the respon dent is a goldsmith having a monthly income of Rs.10,000 with no additional liab ility to discharge. [10] As the summary of the pleadings of the parties has been recited herein-above, it would be sufficient to refer to the testimony on the record for addressing the points urged before us. The appellant in evidence on oath while reiterating her averments in the petition in full reiterated that the marriage w as solemnised according to the Hindu religious rites and customs on 09.02.2000 f ollowing which, an agreement in ratification thereof was executed by the parties before the Sub-Registrar, Bijni, who also registered the same. Apart from affir ming her imputations vis-à-vis demands for dowry she stated in specific terms th at the respondent was a goldsmith having a monthly income of Rs.10,000/-. She th erefore, claimed an amount of Rs.1,00,000/- as permanent alimony. In her cross-e xamination she remained unshaken on her stand. She also stated that the marriage was attended inter alia by Akhil Barman, Karina Bhowmik, Kashi Barman and Bidya bhowmik. She also mentioned about the priest namely, Sanjoy Goswami, who solemn ised the marriage as per Hindu ceremonies in which, ’Hom yajya’ and ’Saptapadi’ were observed. She further stated that during her short stay with the respondent she was assaulted by him as she protested against the dowry, which comprised of Rs.10,000/- and gold ring from her parents. She also testified about the execut ion of the deed of marriage, on the very same date. The evidence of the appellan t’s mother Smti Ranjana Bhowmik is substantially in the same lines. She confirme d that the said marriage was solemnised with Sri Pabaran Tarafdar of the same vi llage in which ’Hom Yajya’ and ’Saptpadi’ were observed. She deposed that the re spondent had been demanding Rs.10,000/- of dowry alongwith Gold ring. She denied the suggestion that in the marriage no ’Hom yajya’ and ’Saptapadi’ had been con ducted. [11] In his evidence the respondent denied the marriage according to Hindu rites and customs. He alleged undue influence and coercion under which his signature was obtained on the marriage agreement. According to him, the appella nt did not reside with him as his wife and that the story of demand of dowry had been concocted by her for unlawful gain. In cross examination however, he admit ted the execution of the agreement between the parities and stated that he did n ot remember as to whether he had informed the Police about the forceful extracti on of his signature thereon. He admitted to have a shop. He denied the allegatio n of torture and insisted that the marriage between the parties was a nullity. H is witness Sri Narendra Ch. Baishya, in his evidence denied as well solemnisatio n of any marriage with the appellant. He also denied to have seen them to be res iding as husband and wife. [12] On a close consideration of the pleadings on record and the evid ence as narrated hereinabove, we find ourselves in disagreement with the conclus ions drawn by the learned Trial Court. True, it is that that appellant did not a dduce the evidence of either the priest, who had performed the marriage or any o ne or more of the persons, who had witnessed the same, but having regard to her unshaken testimony corroborated by that of her mother in this regard, we are of the view that she had been able to make out a case on the basis of the principle of preponderance of probability and establish that her marriage was solemnised as per Hindu rituals and customs with the respondent. The approach of the learne d Trial Court, in this regard is repugnant to the fundamental notion of preponde rance of probability in addressing an issue in a civil proceeding, we are constr aint to uphold that its decision vis-à-vis the issue No.2 is unsustainable and t hus, interfered with. [13] We have carefully appreciated the pleadings of the parties and t he evidence on record vis-à-vis the allegation of cruelty based on demand for do wry. By the same analogy of the principle of preponderance of probability we are of the view that the appellant has been able to prove the same. Though the join t stay of the parties was noticeably a very short one, there is no reason for th is Court to accept the correctness of the stand of the respondent that they had not been lived as husband and wife. The agreement about the factum of marriage b etween the parties executed and registered before Sub-Registrar, Bijni lends sup port to the appellant’s claim with regard there to. [14] We are also inclined to accept the appellant’s evidence to the e ffect that at the relevant point of time, the respondent, as a goldsmith, had a monthly income of Rs.10,000/-. There is nothing on record to indicate any other liability of his in the family or otherwise making it obligatory on his part to spend there from to discharge other unavoidable responsibilities in his life. Th ere is nothing on record to doubt either that the appellant has no independent i ncome of her own and has been depending on her parents for her sustenance. She t herefore, in terms of Section 25 of the Act, is entitled to permanent alimony as well. [15] On a totality of the consideration of the above, we are of the u nhesitant opinion that the appellant is entitled to the relief as framed for. Th e appellant has suffered cruelty by the respondent based on his persistent deman d for dowry entitling her to a decree for dissolution of marriage under Section 13 thereof. In this view of the order, the impugned judgment and order dated 18. 09.2003 is set aside. The marriage between the parties is hereby dissolved by a decree for divorce. Having regard to our observation vis-à-vis the appellant’s c laim for permanent alimony and the materials on record with regard to the respon dent’s means, we are of the opinion that an amount of Rs.1,00,000/-(Rupees one l akh only) by way thereof to her would meet the ends of justice. [16] Ordered accordingly. [17] The respondent would pay the permanent alimony, as above, within a month of here from. The appeal is allowed. [18] No costs.