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2002 DIGILAW 479 (ORI)

SUCHETA PRADHAN v. SANKARSAN NAYAK

2002-08-01

BASUDEVA PANIGRAHI, P.K.MISRA

body2002
PANIGRAHI, J. ( 1 ) THE present appeal has suffered a chequered history. The respondent who is the appellant's husband filed an application under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as the 'act') read with Section 7 of the Family Courts Act praying for passing a decree of divorce. The marriage of both the spouses, namely the appellant and respondent, was solemnised on 5-5-1997 in accordance with Hindu rituals. After such marriage, they led happy marital life for some time, but unfortunately no issue was born to them. The respondent has been working as a lecturer so also the appellant is working as a teacher in primary school. It has been alleged by the respondent that since there was frequent dissension, dispute and quarrel between himself and the appellant, it was impossible for him to continue with her. The appellant-wife was alleged to have behaved in such a fashion that it caused such mental cruelty which added extra load on the camel's back. Bitterness had risen to such an extent that she filed a criminal case before the J. M. F. C. , Jajpur against the respondent. Therefore, the husband filed an application for granting a decree of divorce on the ground of mental cruelty. ( 2 ) THE appellant on the other hand, strongly denied such allegation and claimed that she has been deserted, ill treated and neglected by the respondent. It is further claimed that the respondent is living with another lady, therefore, she had taken shelter with her parents-in-law. ( 3 ) BEFORE the learned Judge, Family Court, the oral evidence has been led by both the parties and the matter was fixed to 12-10-1999 for further evidence to be adduced by the appellant. On that day since her witness could not come, the appellant filed an application for a short adjournment. But the said prayer did not weigh with the learned Judge, Family Court and, accordingly, he rejected the prayer made on her behalf and the evidence was closed. It was, therefore, fixed to 4-11-1999 for hearing. But due to cyclone, the matter could not be taken up and it appeared from time to time on different occasions. But the said prayer did not weigh with the learned Judge, Family Court and, accordingly, he rejected the prayer made on her behalf and the evidence was closed. It was, therefore, fixed to 4-11-1999 for hearing. But due to cyclone, the matter could not be taken up and it appeared from time to time on different occasions. In the meanwhile, the appellant filed a writ petition in this Court challenging the order of the learned Judge, Family Court rejecting the appellant's prayer for adjournment and inter alia prayed for an interim stay of the proceeding pending before the learned Judge, Family Court. This Court in O. J. C. No. 13040 of 1999 granted stay of further proceeding of C. P. No. 93/1994 pending before the Family Court. The matter eventually appeared before the Family Court, on 10-8-2000 awaiting the information from this Court. But the respondent abruptly filed the certified copy of the order passed in O. J. C. No. 13040 of 1999, whereby the writ petition filed by the appellant was dismissed for default. So the Family Court fixed the matter to 20-8-2000 for argument. ( 4 ) THE appellant's only grievance in this case is that since she could know that the learned Judge, Family Court, had fixed the matter to 28-8-2000 for argument, neither the appellant nor her counsel was, therefore, present to address the argument. Therefore, the learned Judge, Family Court after hearing the respondent only passed the impugned judgment. ( 5 ) UPON hearing both the parties and on perusal of the orders passed on different dates by the learned Judge, Family Court, it has been however gathered that the learned Judge had fixed the matter to 10-8-2000 for awaiting instruction from this Court. Therefore, the appellant reasonably expected that the matter might not be taken up on that day. The husband-respondent however filed the certified copy of the order passed in the writ petition in O. J. C. No. 13040 of 1999 without serving any copy either on the appellant or on her counsel. Therefore, she was labouring under the impression that another date would be fixed for hearing the argument. She reasonably expected that a chance would be given to her and, thus, it had caused prejudice in passing a decree for divorce without any opportunity being given to her. Therefore, she was labouring under the impression that another date would be fixed for hearing the argument. She reasonably expected that a chance would be given to her and, thus, it had caused prejudice in passing a decree for divorce without any opportunity being given to her. ( 6 ) THEREFORE, in the above situation, without adverting to the evidence placed before us, suffice it to say that since no opportunity was given to either the appellant or her counsel, we, therefore, vacate the decree of divorce passed by the learned Judge, Family Court, subject to payment of Rs. 500/- (Rupees five hundred) towards cost to the learned counsel appearing for the respondent in this Court within a week. ( 7 ) THE matter shall appear before the learned Judge, Family Court, on 19-8-2002 at 10. 30 a. m. without any further notice by the learned Judge, Family Court. Both the parties, if they so desire, can lead further evidence on the aforementioned date. The learned Judge, Family Court, is directed to dispose of the case within a period of two months from the date of receipt of the record without granting any further adjournment to either parties. With the above observation, the appeal is allowed. The impugned order is hereby vacated but, in the circumstance, without cost. ( 8 ) P. C. MISRA, J. I agree. Appeal allowed.