JUDGMENT
P.C. Pathak, J.
1. This is an appeal under Section 28 of the Hindu Marriage Act, 1955 (hereinafter called ‘the Act’) against judgment and decree passed in favour of the respondent under Section 9 of the Act.
2. The respondent filed petition for restitution of conjugal rights alleging that the parties were married in May 1984 according to Hindu rites, and she came in ‘gawana’ and lived with him in village Majhgawan. On 15.6.1984 appellant’s father, without the permission and knowledge of the respondent, took the appellant back to Baikunthpur. When he came to know about her departure, the respondent went to her father’s house on 20.6.1984 and asked her to accompany to him, but she declined. She continued to live with her parents. The appellant is thus refusing to resume cohabitation without just and reasonable cause. He prayed for a decree for restitution of conjugal life.
3. The appellant filed written-statement denying all the allegations in the plaint except the factum of marriage in para 1. The respondent filed a photograph showing the busts of both quite close to each other and examined sole witness his brother Sukhlal, to prove his case. The learned Trial Court accepting the oral testimony and also the admission of para 1 of the written statement, held that the appellant is the legally married wife of the respondent and without any justification she is refusing to resume cohabitation with the respondent. Hence this appeal.
4. Learned Counsel for the appellant argued that there is no reliable proof of the marriage between the parties. The alleged admission in para 1 of the written statement is outcome of typing mistake. On going through the record, I find there is much substance in the argument. In paragraph 2 of the written statement, the appellant specifically denied her marriage with the respondent in May, 1984. She also denied that there was any ‘gawana’ and that she ever resided with respondent. Reading the written statement as a whole, the alleged admission in para 1 of the written statement is nothing but a typing mistake. She opposed the plaint case on all counts. The burden to prove that she is legally married wife of the respondent is lay on the plaintiff. The plaintiff himself did not enter into witness-box. He also produced no documents, namely ‘Iaganpatrika’ or any invitation-card or the like. No member of the marriage party or the Pandit who got the ceremony performed have been examined. The statement of plaintiff’s brother and the photograph by themselves do not prove the factum of marriage according to Hindu rites between the parties.
5. Learned Counsel for the appellant rightly assailed the admissibility of the photograph. The photographer was not examined nor the negative has been produced. With the advanced technology in photography, it is not difficult to obtain such photographs by juxtaposition of the individual photographs. It was essential of the plaintiff to lead evidence the occasion in which the photograph was taken. No such proof has been adduced. Therefore, the finding of the Trial Court that the appellant is legally married wife of the respondent cannot be sustained.
6. In view of the foregoing discussions, the appeal is allowed, the judgment and decree passed by the Trial Court are set aside. Since none has appeared on behalf of the respondent, there shall be no order as to costs.