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Gauhati High Court · body

1999 DIGILAW 173 (GAU)

Rina Nandi v. Amrit Nandi

1999-05-20

D.N.CHOWDHURY, N.C.JAIN

body1999
This appeal has been filed by the appellant-wife against the decree of the Family Court granting a decree of divorce in favour of the respondent. The petition was filed by the respondent apparently under section 13 (1 A) of the Hindu Marriage Act on the ground that the decree for judicial separation has been complied with and that the parties are living separately for the last more than one year. 2. The Principal Judge of Family Court, Guwahati has not concededly recorded any evidence in the present petition under section 13 of the Hindu Marriage Act. He has summoned the records of the previous proceedings and after perusing the same granted the decree in favour of the respondent by making following observation: “The facts and circumstances of these suits No.FC (Civil) 1 of 1993, under section 10 HM Act, FC(Crl) 161 of 1993 under section 125 CrPC and FC (Civil) 198 of 1998 under section 13 HM Act, clearly show that the respondent has been living separately from her husband since 7.6.92 and that she had made the married life of the petitioner unhappy by quarrelling with him frequently which amount to cruelty. I thus find that the petitioner is also entitled to a decree of divorce on the grounds of cruelty and desertion.” It has remained undisputed before us during the course of hearing that neither the respondent-husband nor the appellant-wife has led any evidence in the petition for divorce. Section 13 (1) (a) of the Hindu Marriage Act lays down that the decree can be granted to either of the parties on the proof that co-habitation between the parties for a period of one year or more since the passing of the decree for judicial separation has not taken place. This provision of law in our considered view is mandatory. It was for the husband in the first instance to prove on record by leading evideflce that there had been non-resumption of cohabitation between him and his wife for more than a year after the passing of e the decree for judicial separation. After the evidence of the husband, it was for the wife to produce evidence to the contrary. It appears to us that the Family Court took the matter casually and he remained satisfied by summoning the records of the previous proceedings, may be the same was summoned on account of agreement between the parties. After the evidence of the husband, it was for the wife to produce evidence to the contrary. It appears to us that the Family Court took the matter casually and he remained satisfied by summoning the records of the previous proceedings, may be the same was summoned on account of agreement between the parties. Even if the parties consented not lead any evidence, the Family Court can certainly not adopt a procedure unknown to section 13 (1) (a) of the Hindu Marriage Act. The procedure prescribed by Family Court Act, 1984 has also not been followed by the Family Court. Above all the Family Court in the impugned judgment has observed that the respondent-husband has proved cruelty and desertion. This was not the requirement of law for granting a decree under section 13(1) (a) of the Hindu Marriage Act. We have noted with regrets the lack of knowledge on the part of the Family Court & who by virtue of seniority should have known as to what duty he was to perform. 3. A copy of the judgment passed by us be sent to the Family Court with an advice to him to'be better equipped with the provisions of law when dealing with the cases of divorce which is all the more necessary in this part of the State as parties are not represented by a lawyer. It is at every stage that the parties have to be guided by the Family Court about their rights and duties. The Family Court has to perform much onerous duty. 4. For the reasons recorded above the appeal is allowed. However, we are not feeling inclined to award costs of the appeal because the respondent can not be faulted with in the present case as both the parties have not been guided by the Family Court. The parties through their counsel shall appear before the Family Court on 21.6.99. The Family Court would permit the filing of the written statement to the appellant if none has been filed. If the written statement has already been filed, the appellant would be permitted to file her amended written statement. We are not disposing the application for interim alimony since the case is being remanded. This task would better be performed by the Family Court.