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2008 DIGILAW 643 (GAU)

Harajogindra Singh v. Ellora Brahma

2008-09-02

AFTAB H.SAIKIA, P.K.MUSAHARY

body2008
JUDGMENT Aftab H. Saikia, J. 1. Heard Mr. N.C. Phukan, learned Counsel for the Appellant. None appears on behalf of Respondent despite the names of Mr. K. Bhatta and Mr. S. Ali, engaged Counsel have been duly reflected in the cause list dated 2.9.2008. On earlier occasions also when this matter was listed for hearing the learned Counsel representing the Respondent preferred not to appear before the court despite their names duly reflected in the respective cause list itself. Having no other alternative, in the last order dated 19.8.2008 this Court gave the last chance to Mr. Bhatta and Mr. S. Ali to appear before the court today. 2. By means of this matrimonial appeal the Appellant who is a doctor working under the Assam State Health Services has assailed the order dated 5.2.2007 passed by the learned Principal Judge, Family Court at Guwahati in F.C.(Civil) Case No. 71/04 whereby deciding the application under Section13(1)(ia) for dissolution of marriage on the ground of cruelty, the learned Judge instead of granting prayer for dissolution of marriage by a decree of divorce, ordered for judicial separation for the parties from the date of passing that order. 3. The limited argument so advanced by Mr. Phukan, the learned Counsel in assailing the impugned judgment is that though marriage took place in the year 1991 and from the said wedlock a male child Was born on 27.10.1991, the Appellant and the Respondent have been living separately for last more than 8 years from April, 2000 after leading their conjugal life as husband and wife till March 2000. In this process the marital tie between the husband and wife has been irretrievably broken and there is no chance of reconciliation so as to allow them to lead happy conjugal life together. Under such circumstances, the learned Judge ought to have considered those aspects of the matter and a decree of divorce ought to have been passed for dissolution of marriage. He has also stated that the learned Judge did not consider the allegations and the pleadings of the Appellant as regards torture and cruelty. 4. Under such circumstances, the learned Judge ought to have considered those aspects of the matter and a decree of divorce ought to have been passed for dissolution of marriage. He has also stated that the learned Judge did not consider the allegations and the pleadings of the Appellant as regards torture and cruelty. 4. Be that as it may, since the Appellant and the Respondents have been living separately since April 2000 till date, we are of the considered view that marriage is irretrievably broken down with no possibility of the parties to live together again due to their separation and no purpose would be served by compelling both the parties to live in the judicial separation as directed by the learned Principal Judge, Family court and in the above premises, best course would be to dissolve the marriage by passing a decree of divorce of marriage as the parties are litigating since 2004 and they have lost their valuable part of lives and can live peacefully for the remaining part of their life. We order accordingly. We have taken this view in the light of judgment rendered by the Apex Court in the case of Rishikesh Sharma v. Saroj Sharma (2007) 2 SCC 263 . 5. However, considering the social position and financial status of both the parties namely the Appellant, a doctor and the Respondent, a nurse, who are working in the Assam State Health Services, we are of the view that interest of justice will be satisfied if the Appellant is directed to pay a lumsum amount by way of permanent alimony to the wife. Accordingly we quantify the permanent alimony at Rs.4 lakhs. It is accordingly directed that the amount so quantified above be paid to the Respondent within one year from today in four equal installments, failing which the amount would accrue an interest @ Rs.9% per annum. The amount shall be deposited with the trial court, i.e., the learned Principal Judge, Family court, Guwahati and the Respondent shall be at liberty to withdraw the same amount. 6. Appeal stands allowed to the extent indicated above. Appeal allowed.