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2019 DIGILAW 164 (JHR)

Uttam Kumar Choubey, S/o Yugal Kishore Choubey @ Jugal Kishore Choubey v. Kiran Kumari Mishra @ Kumari Kiran, D/o Sri Harekrishna Mishra

2019-01-17

ANIRUDDHA BOSE, APARESH KUMAR SINGH

body2019
JUDGMENT : ANIRUDDHA BOSE, J. 1. Heard the learned counsel for the petitioner. 2. In spite of valid service of notice, the respondent/opposite party herein did not enter appearance. 3. It is contended by the learned counsel for the petitioner that First Appeal bearing No. 67/2012 was directed against the common judgment passed in Matrimonial Case No. 15 of 1998/28 of 2003 and Cross Suit No. 49 of 2008 by the aggrieved husband. He was aggrieved by dismissal of Cross Suit No. 49 of 2008 to the extent that the prayer to grant divorce was refused. Instead the learned Court decided both the suits with decree for judicial separation. 4. Learned counsel for the petitioner submits that the impugned judgment was dated 1st December, 2011 and the parties have not started cohabiting. As such decree of judicial separation had duly taken effect, the appellant/petitioner herein got a ground to seek divorce in terms of Section 13(1-A) of the Hindu Marriage Act after expiry of one year period from the date of decree of judicial separation. 5. Learned Division Bench after considering the aforesaid facts permitted the appellant to withdraw the appeal in connection with which this Review petition is filed. It is submission of the Review-Applicant that liberty prayed for institution of fresh suit of divorce on the aforesaid ground was inadvertently not recorded. This has become a technical hurdle for the husband-petitioner in instituting the fresh suit for divorce on that ground though case of the Review-applicant is that the spouses are living separately since passing of the impugned judgment. The present review petition is directed to that extent, seeking in substance liberty to file such suit. 6. Since the respondent-wife/opposite party has not entered appearance, there is no opposition to the prayer as such. 7. We do not find any difficulty in granting such liberty. In the aforesaid facts, the impugned judgment is modified to the extent liberty is granted to the appellant-husband/petitioner herein to take recourse as permissible in law, under the Hindu Marriage Act for seeking divorce on the grounds available under the law. 8. Accordingly, this civil review petition stands disposed of in the above terms. There shall be no order as to costs.