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2011 DIGILAW 202 (GAU)

Afsana Begum Llasker v. Fulen Ahmed Lasker

2011-03-10

H.BARUAH

body2011
JUDGMENT H. Baruah, J. 1. Heard Mr. P.C. Prusty, learned Counsel for the Appellant as well as Mr. M.M. Ali, learned Counsel for the sole Respondent. 2. In this appeal the Order dated 6-10-2009 passed by the learned Additional District and Sessions Judge, Aizawl District, Aizawl, in Divorce Case No. 1 of 2009 is under challenge whereby and whereunder a decree of divorce is granted in favour of the Appellant namely Smt. Afsana Begum Lasker. 3. A scrutiny of the impugned order makes it palpably clear that a decree of divorce was granted, in view of having raised no objection by the Respondent Sh. Fulen Ahmed Lasker, the husband of the Appellant. The decree thus appears to be a mutual divorce decree in between the parties. 4. On perusal of the memo of appeal it is noticed paragraphs 4 and 5 in particular that no instruction/advise by the Appellant was given to the engaged Counsel to file a divorce case, instead the Counsel was advised/instructed to file a maintenance case for grant of maintenance to herself as well as for her minor daughter before the Magistrate First Class under Section 125 of the Code of Criminal Procedure. Having filed the application for divorce by the Counsel so engaged by the Appellant, the matter was heard and impugned order passed. 5. This Court in view of the statement made in para 4 and 5 of the memo of appeal directed the Appellant to file an affidavit. The Appellant accordingly filed the affidavit. The learned Counsel so engaged also filed another affidavit indicating therein that he was appointed as a lawyer to prosecute the case of the Appellant namely Mrs. Afsana Begum Lasker in the maintenance case as well as guardianship case pending before the Magistrate, First Class, Aizawl on account of ill-treatment meted to her both mental and physical by her husband. She also approached him and instructed him to file a case against her husband but due to communication gap and mis-understanding he filed divorce petition before Additional District and Sessions Judge, Aizawl. It appears to this Court that there was no advise/instruction to the Counsel to file a divorce case against her husband instead he was instructed/advised to file a case on account of ill treatment on her by the Respondent, her husband. 6. It appears to this Court that there was no advise/instruction to the Counsel to file a divorce case against her husband instead he was instructed/advised to file a case on account of ill treatment on her by the Respondent, her husband. 6. From both the affidavit filed by the Appellant as well as the engaged Counsel it appears that without instruction/advise a divorce case was filed and an order was passed granting a decree of divorce which cannot stand in the eye of law. That apart the impugned order indicates that there was consensus between the parties to have a mutual decree of divorce. On that count no application nothing of the sort is available in the LCR. It is indicated in the impugned order that the Respondent/Defendant having not raised any objection for grant of decree of divorce to the Appellant herein, the decree was passed accordingly. 7. In view of the averments made in para 4 and 5 of the memo of appeal and the affidavit filed by the Appellant as well as her advocate this Court is of considered view that the impugned order cannot survive in law. 8. The impugned order dated 6.10.2009 is accordingly set aside and quashed. 9. Appeal is allowed. No cost. 10. The divorce case No. 1 of 2009 accordingly stands dismissed. Send back the records. Appeal allowed.