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2019 DIGILAW 834 (GAU)

Pramita Kemprai v. Subhankar Hojai

2019-07-17

A.K.GOSWAMI, MANISH CHOUDHURY

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JUDGMENT : Arup Kumar Goswami, J. 1. Heard Mr. B.N. Sarma, learned counsel for the appellant. Also heard Mr. B. Baruah, learned counsel for the respondent. 2. By this appeal, the appellant has challenged the judgment and order passed by the learned Judge Subordinate, N.C. Hills Autonomous Council Court, Haflong in T.S. Case No. 80/2016, whereby the marriage between the parties to the appeal has been dissolved and alimony of Rs. 70,000/- was granted to the appellant. 3. The respondent approached the Court of Judge Subordinate, N.C. Hills Autonomous Council Court, Haflong for declaration of his marriage with the appellant as null and void. The letter/petition is available at Page 49 of the record of the learned Court below. The ground cited is that the parties come within the prohibited degrees of marriage. It was also stated that though in the Deed of Marriage executed before the Notary Public, Diphu on 28.4.2016 it was indicated that the parties had already married on 26.4.2016 at temple according to rites and customs of Hindu, the same was not correct and he had never visited or taken any step to get married in any Hindu temple. 4. On receipt of the said letter/petition, T.S. Case No. 80/2016 was registered in the Court of Judge Subordinate, N.C. Hills Autonomous Council Court, Haflong. A notice dated 22.7.2016 was issued requiring the respondent to file written statement within 1.8.2016. As no written statement was filed, another notice dated 3.8.2016 was issued requiring the respondent to file written statement within 10.8.2016. It appears that the respondent had submitted a statement, which is available at Page 32 of the record of the learned Court below, wherein reference is made to the aforesaid two notices. It appears that the appellant had filed a petition to refer the matter to Mauzadar as customary law was involved in the dispute. On the said petition, the learned Judge Subordinate, N.C. Hills Autonomous Council Court passed an order dated 19.8.2016 "after discussion with senior officials, Judge etc." referring the matter to the Mauzadar of Umrangso permitting him also to consult the matter with other Mauzadars for giving justice to the parties. 5. On the said petition, the learned Judge Subordinate, N.C. Hills Autonomous Council Court passed an order dated 19.8.2016 "after discussion with senior officials, Judge etc." referring the matter to the Mauzadar of Umrangso permitting him also to consult the matter with other Mauzadars for giving justice to the parties. 5. A perusal of the impugned order dated 25.10.2016 goes to show that it was decided that Mauzadars of Umrangso, Dehangi and Haflong would be called along with the Gaonburahs of Dongzen Razi Umrangso and Gaonburah of Johaya Razi, Haflong to discuss the matter of clan of both the parties. It also appears from the impugned order that they had appeared on the strength of a notice issued on 29.9.2016. It further transpires from the impugned order that they were of the opinion that the parties are not related to each other. But nonetheless, they had suggested that divorce is inevitable as the respondent-husband did not want to continue with the relationship. Taking into consideration the suggestion of the Mauzadars and the Judge of N.C. Hills Autonomous Council Court, the impugned order came to be passed granting dissolution of marriage. The operative portion of the order reads as under: "Thus taking into consideration of the suggestion of the Mauzadars and Judge of N.C. Hills Autonomous Council Court, the divorce is to be granted to the party in dispute as the Court also finds it suitable in the present circumstances to grant as prayed by the petitioner. But by merely granting divorce is not appropriate as it would be injustice on the part of the respondent who had to undergo severe mental agony from family and society. Therefore to maintain justice in the case, the respondent wife shall be awarded an alimony with which she can restart her life afresh. An amount of Rs. 70,000.00 (Rupees seventy thousand) only has been decided as alimony to be granted to Pramita Kemprai by Shubangkar Hojai within December 2016. Thus on day of 20th October 2016, the marriage between Shubangkar Hojai and Pramita shall be dissoluted and from this day onwards in any kind of society they shall not be termed as husband and wife. And from this day, both the parties to live in harmony". 6. Thus on day of 20th October 2016, the marriage between Shubangkar Hojai and Pramita shall be dissoluted and from this day onwards in any kind of society they shall not be termed as husband and wife. And from this day, both the parties to live in harmony". 6. Rule 47 of the North Cachar Hills Autonomous Districts (Administration of Justice) Rules, 1955 provides that in civil cases the District Council Court or the Subordinate District Council Court shall adjudicate according to law, justice, equity and good conscience consistent with the circumstances of the case. Rule 49 provides that in civil cases, such Courts shall be guided by the spirit of the Code of Civil Procedure, 1908 in all matters not covered by recognised customary laws or usages of the District. 7. A fundamental principle of judicial determination of a lis is that one who is entrusted to decide a lis has to decide the same on the basis of the materials on record and it cannot be countenanced that a judgment will be delivered on the basis of suggestions given by outsiders, who at the most can be cited as witnesses. The respondent, who was the petitioner, had not come before the Court to adduce any evidence. In the instant case, it is manifest that the learned Judge Subordinate, N.C. Hills Autonomous Council Court has, on the basis of the suggestion of the Mouzadars and her superior, granted divorce. It is a case of surrender and abdication of judicial power and any order passed in the manner in which it has been passed cannot receive judicial imprimatur. The procedure undertaken by the learned Judge Subordinate, N.C. Hills Autonomous Council Court does not come in the realm of the spirit of Code of Civil Procedure. That apart, the materials on record do not indicate that copy of the letter/petition at Page 49 of the record of the learned Court below was enclosed with the notices dated 22.7.2016 and 3.8.2016. If a written statement is called for, it is essential that the copy on the basis of which the case is registered and on the basis of which written statement is called for, is enclosed with the notice. If a written statement is called for, it is essential that the copy on the basis of which the case is registered and on the basis of which written statement is called for, is enclosed with the notice. The statement at Page 32 of the record of the learned Court below submitted by the appellant was not styled as a written statement, though the learned Trial Judge has taken it to be a written statement. In absence of the letter/petition, it goes without saying that no effective written statement could have been filed and to that extent the appellant had been denied reasonable opportunity of putting forward her case in an effective manner. 8. In view of the above discussion, we are of the opinion that the impugned judgment and order cannot be sustained in law and, accordingly, the same is set aside and quashed. The appellant will be at liberty to file written statement, if so advised. 9. The parties to the proceedings will appear before the Judge Subordinate, N.C. Hills Autonomous District Council Court, Haflong on 23.9.2019 either by themselves or through authorised counsel for further orders. After appearance of the parties, the proceedings will be regulated by the learned Court below. 10. At this stage, Mr. Baruah submits that liberty may be reserved to the respondent to amend the letter/petition filed by him on the basis of which T.S. Case No. 80/2016 was registered to which the learned counsel for the appellant has no objection. If any such application for amendment is filed, the same shall be considered in accordance with law. 11. It is also submitted by Mr. Baruah that an amount of Rs. 70,000/- was deposited by the respondent in terms of the impugned order and as the same has been set aside, the amount may be returned back to the respondent. In view of setting aside of the impugned order of dissolution of marriage, the amount of Rs. 70,000/-, which is stated to be not withdrawn by the appellant, shall be returned back to the respondent. 12. Registry will send back the records so as to reach the Court of Judge Subordinate, N.C. Hills Autonomous District Council Court, Haflong well ahead of the date fixed.