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2019 DIGILAW 214 (GAU)

Pompi Das @ Pompi Rani Das v. Raju Chandra Das

2019-02-15

A.S.BOPANNA, SANJAY KUMAR MEDHI

body2019
JUDGMENT : A.S. BOPANNA, J. 1. The appellant is before this Court assailing the judgment/order dated 09.01.2018 passed by the Court below in T.S. (Divorce) No.21/2017. Through the said judgment, the Court below has allowed the petition filed by the respondent herein under Section 13(i-a) of the Hindu Marriage Act, 1955 and granted the decree of dissolution of marriage. It is in that light, the appellant herein, who was the respondent in the said proceedings, is before this Court in this appeal. 2. Heard Mr. A.M. Barbhuiya, learned counsel for the appellant and Mrs. R. Choudhury, learned counsel for the respondent and perused the appeal papers. 3. The relationship between the parties is not in dispute. The respondent herein is the husband of the appellant. Contending that the appellant herein had inflicted cruelty on him he had filed the petition under Section 13(i-a) of the Hindu Marriage Act, seeking dissolution of marriage. The appellant herein, who was the respondent to the said proceedings, on being notified, had appeared, but had failed to file written statement and contest the matter. The Court below, accordingly, having accepted the version of the respondent herein, had dissolved the marriage. 4. At the outset, it is necessary to take note that the Court below has not referred to the nature of averments in the petition and the affidavit that was filed in lieu of oral evidence to take note as to whether the petitioner before it had satisfied the requirement of law in establishing the ground under which the petition was filed when Section 13(i-a) of the Act was invoked. In that regard, a consideration was required to be made as to whether the allegation of cruelty had been established by the evidence even in the absence of the respondent having controverted the contentions. 5. Learned counsel for the respondent herein would seek to sustain the judgment passed by the Court below by contending that the respondent herein had made out efforts to sustain the marital relationship and despite the respondent having filed a petition under Section 9 of the Hindu Marriage Act in Title Suit (R) No.18/2012, the same came to be dismissed. 5. Learned counsel for the respondent herein would seek to sustain the judgment passed by the Court below by contending that the respondent herein had made out efforts to sustain the marital relationship and despite the respondent having filed a petition under Section 9 of the Hindu Marriage Act in Title Suit (R) No.18/2012, the same came to be dismissed. In that situation, when the conjugal rights was not restored through the decree of the Court nor the appellant herein had voluntarily joined the company of the respondent, the respondent was left with no alternative but to seek for dissolution of the marriage. It is further contended by the learned counsel for the respondent that in the proceedings relating to the guardianship of the child in Misc.(G) Case No.12/2015, in the cross-examination of the appellant herein, she had categorically stated that she is not interested to lead the conjugal life with the respondent. It is, therefore, contended that in such situation, in any event, the Court below was justified in its conclusion to dissolve the marriage and the judgment passed by the Court below does not call for interference. 6. Learned counsel for the appellant would, however, point out that the said proceedings would not be of any relevance inasmuch as the present proceedings was initiated under Section 13(i-a) of the Act and, in such situation, when the allegation of cruelty is pleaded, the same would have to be established and the statement as recorded in the context of other proceedings will not be justified. It is also his contention that in the petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights, it is based on different consideration and, in fact, the petition filed by the respondent seeking for restitution has been dismissed on having taken note of the conduct of the respondent himself, which cannot be taken advantage of by the respondent. 7. In the light of the contentions, at this juncture, we are of the opinion that in the instant appeal we would not be justified in taking note of the proceedings in the collateral litigations between the same parties inasmuch as in the present context what was being considered by the Court below was the petition under Section 13(i-a) of the Hindu Marriage Act. While taking note of the pleading and the evidence, in any event, the Court below has not referred to the collateral proceedings so as to grant that benefit and accept the case of the respondent. As already noticed, the Court below has not referred to the evidence in detail even if it be that the same had remained un-controverted. Hence, in a circumstance, where the record would disclose that the appellant had not participated in the proceedings and, in that circumstance, the Court below has passed the order accepting one version that too without discussion, in a dispute of the present nature the Court below while weighing the oral evidence alone, which normally would be available in such matrimonial matter, the version of other side would also become important even if the word against word is to be analysed. If this aspect is kept in view, the appellant herein, in any event, would have to be provided an opportunity to put forth her contention before the Court below and an ultimate decision is to be taken by the Court below. 8. In that view, the judgment dated 9.1.2018 is set aside. The proceedings in T.S. (Divorce) No.21/2017 is restored to the file of the District Judge, Hailakandi for consideration of the matter afresh. Since both the parties are represented by their counsel, the issue of fresh summon/notice by the Court below is waived. The parties shall voluntarily appear before the Court below on 11.03.2019 at 11.00 A.M. as the first date of appearance. The Court below shall, thereafter, regulate the proceedings, provide opportunities to the parties and dispose of the same in accordance with law. All contentions of the parties on merit are left open to be urged before the Court below. 9. The appeal is, accordingly, disposed of. 10. Registry to return the LCR to the Court below.