Smt. Sutapa Chakraborty vs Sri Gautam Chakraborty
2022 Latest Caselaw 2548 Cal

05.05.2022
 SL No.18
 Court No.8
    (gc)


                             FAT 525 of 2019
                                  With
                              CAN 1 of 2019
                       (Old No: CAN 11456 of 2019)
                                  With
                              CAN 2 of 2020

                        Smt. Sutapa Chakraborty
                                  Vs.
                        Sri Gautam Chakraborty

                                      Mr. Asit Kumar Bhattacharya,
                                      Ms. Kakali Samajpaty,
                                      Ms. Sangita Jangra,
                                                    ...for the Appellant.
                                      Mr. Sounak Bhattacharya,
                                                  ...for the Respondent.

Re: CAN 1 of 2019 (Old No: CAN 11456 of 2019)

The appeal is arising out of a judgment dated 13th

September, 2019 in connection with an application

under Section 27 of the Special Marriage Act, 1954 by

the respondent/husband against his wife for decree of

divorce. The wife is the appellant.

The appeal was filed on 19th November, 2019

within the period of limitation. However, the

respondent remarried on 17th January, 2020 as

apparently he was not informed of the pendency of the

appeal, which, however, was contradicted by Mr. Asit

Kumar Bhattacharya, learned Counsel appearing for the

appellant by producing a communication dated 18th

December, 2019 that was received by the husband on

23rd December, 2019. The communication curiously did

not mention about the pendency of the appeal but only

indicated that the decree is appealable and the time for

preferring the appeal has not yet expired. The appellant

did not inform the husband that an appeal was filed on

19th November, 2019.

Mr. Sounak Bhattacharya, learned Counsel

appearing on behalf of the respondent/husband

submits that the respondent became aware of the filing

of the appeal only after it was disclosed in the

proceeding under Section 498A IPC and thereafter while

keeping a watch on the list on 19th April, 2022 the

matter appeared before the Division Bench and,

accordingly, he was instructed to represent the

respondent/husband in the said proceeding.

Our attention is drawn to the order dated 19th April,

2022 by which the appellant was directed to serve

copies of the applications being CAN 1 of 2019 (Old No:

CAN 11456 of 2019) and CAN 2 of 2020. It is submitted

by Mr. Sounak Bhattacharya that during the pendency

of the appeal, a child was born in connection with the

subsequent marriage on 7th April, 2021 and at this

stage, the question of granting any order of injunction

restraining the husband/respondent to remarry does

not arise. We are in agreement with the submission

made by Mr. Sounak Bhattacharya. The record does

not reveal that the application for stay was ever moved

by the appellant or that the respondent was served with

the memorandum of appeal or the stay petition within

the period of limitation. The remarriage had taken place

on 17th January, 2020.

Under such circumstances, the prayer for an order

restraining the husband/respondent to remarry does

not arise. The application accordingly fails.

The application for stay being CAN 1 of 2019 (Old

No: CAN 11456 of 2019) stands dismissed.

However, there shall be no order as to costs.

A copy of the letter dated 18th December, 2019

along with the original Track Consignment report

produced before us by the parties are taken on record.

The supplementary affidavit disclosing the order of

the learned Judicial Magistrate, 3rd Court, Barrackpore

is taken on record.

Re: CAN 2 of 2020

This is an application for urgent hearing of the

appeal along with the stay petition. The stay petition is

disposed of today. The appellant has not taken any

steps either for early hearing of the stay petition or for

the appeal.

The appeal and the application have been kept

pending for almost three years. In fact, no attempt was

made to move the stay petition prior to the outbreak of

Covid-19 even when the Court was functioning normally

and no attempt was made to move the said application

virtually.

Be that as it may, we think the appeal should be

heard as expeditiously as possible.

Accordingly, the application being CAN 2 of 2020

stands disposed of.

Re: FAT 525 of 2019

Let the Lower Court's Record of this case be called

for by the department within 10 days from date.

After arrival of Lower Court's Record, Office shall

examine the same and, if found complete, shall serve a

notice upon the appellant.

Mr. Sounak Bhattacharya, Learned Counsel

appearing for the respondent accepts service of notice of

appeal on behalf of the said respondent. As such,

service of notice of appeal upon the said respondent is

waived.

The appellant shall prepare and file requisite

number of informal paper books, printed, typewritten or

cyclostyled, as the case may be, out of court, on or

before 30th June, 2022.

Liberty to mention after preparation of the paper

books.

(Sugato Majumdar, J.) (Soumen Sen, J.)