IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.408 of 2009 MITHILESH KUMAR S/O Shri Raghunath Singh, R/O Village-Purairiya P.S. Lalganj, Distt-Vaishali……..Plaintiff/Appellant ……Appellant Versus SHAMBHA DEVI W/O Mithilesh Kumar S/O Jeetlal Bhagat R/O-Village Chakiya Jagdishpur, P.S. Paroo, Distt-Muzaffarpur…..Opposite Party/……Respondent. ----------- 6. 25-Jan-10 Heard learned counsel for the appellant. In spite of notice nobody has appeared on behalf of the respondent to oppose this appeal. 2. Appellant preferred Matrimonial Case No. 31/2008 before the Principal Judge, Family Court, Vaishali at Hajipur under Section 13 of the Hindu Marriage Act seeking divorce against his wife, the sole respondent herein on the ground of cruelty by desertion and also alleged that she was having illicit relationship at her naiher. 3. Learned counsel for the appellant has pointed out that the judgment under appeal dated 14.5.2009 itself shows that even after notice the respondent did not appear and contest the Matrimonial Case in which the appellant examined four witnesses including himself in support of his case. 4. From the discussions on evidence made by 2 the learned Family Court, particularly, evidence of the appellant (APW-1) it has been shown that the appellant supported his case and clearly stated about the illicit relationship of the respondent at her naiher and also that he went on 23.2.2008 to bring the respondent but she refused to come with him. The other witnesses examined by the applicant have also supported his case and have also deposed that the father of the appellant and father of the respondent were parties to an agreement (Exhibit-1) according to which the respondent was not ready to keep any marital relationship with the appellant. 5. It has been submitted by learned counsel for the appellant that in the light of materials and evidence on record the Principal Judge, Family Court committed an error in coming to a finding that the appellant had not been able to prove his case for divorce on the ground of cruelty and desertion. To the contrary, from the evidence which has not been challenged by the appellant through cross-examination the appellant has clearly made out a case for divorce and dissolution of the marriage which took place in the year 2002. 6. In the facts of the case, the judgment and 3 decree under appeal are set aside and the Matrimonial Case No.31/2008 seeking divorce against respondent on the ground of cruelty and desertion is allowed. 7. The appeal is allowed but since the respondent has not appeared, there will be no order as to costs. perwez (Shiva Kirti Singh, J.) (Jyoti Saran, J.)